EU draft Withdrawal Agreement: what does it say?

15 Nov 2018 by

The draft Agreement – here – is a mere 585 pages. No harm in trying to read it, or the bits of it which are of particular interest, because in that respect you may be well ahead of some of the rather noisier politicians.

It may seem a bit premature to say too much about it, not least because of the political turmoils, but it promises that

(1) the EU and UK will “use their best endeavours” to have a future trade agreement concluded six months before the end of the transition period in December 2020; this is extensible on agreement thereafter;

(2) but that if this is not the case the EU and the UK could “jointly extend the transition period” for an unspecified period.

Anyway, first thoughts on some of the detail.

The draft Agreement is a bit of a game of two halves.

The first (300) pages is about holding the ring between the EU and the UK whilst they (try to) negotiate a more long-lasting agreement. This is, in many senses, postponing the effect of the UK’s Art.50 notice by another name. It has a number of enforcement mechanisms including retaining direct effect (Art.4) , the CJEU (where issues of EU law arise) and creating an arbitration body to adjudicate on other areas of dispute where a joint committee cannot resolve them.

The second half is a series of protocols which in some cases reveal rather more about the real deal than the first half. The most notable is the Northern Ireland protocol; starting at p.301, which has many annexes which extend to p.475.

In this protocol lies the much-talked about backstop. If no more permanent agreement is reached between the UK and the EU, then the relationship is governed by the annexes. These apply differentially to Northern Ireland only or to the UK. But they embed in domestic law much of EU law until a full agreement is reached, or it is agreed to set aside the backstop.

Some of the recitals to the NI protocols tell a bit of a story:

RECALLING that the Withdrawal Agreement, which is based on Article 50 TEU, does not aim at establishing a permanent future relationship between the Union and the United Kingdom,

HAVING REGARD to the Union and to the United Kingdom’s common objective of a close future relationship, which will establish ambitious customs arrangements that build on the single customs territory provided for in this Protocol…..,

Until the future relationship (“ambitious” or otherwise) cuts in, there shall be a ” Single customs territory, movement of goods” between the EU and the UK: Art.6.

This comes with the inevitable accompanying terms to stop UK undercutting of standards – hence

“With a view to ensuring the maintenance of the level playing field conditions required for the proper functioning of this paragraph, the provisions set out in Annex 4 to this Protocol shall apply.”

The level playing field, Annex 4, starts at p.354. It covers many areas across the board of EU law, but in my main field, environmental law, the message is emphatic. The principle of “Non-regression in the level of environmental protection” is established, in all major current areas of environmental legislation (habitats, waste, water, climate change). Ditto, the Rio 1992 Declaration is embedded, as is UNFCC/Paris, and the various environmental principles currently to be found in the EU Treaties on which the Government had promised to publish a Bill before Xmas. Hope it happens, but today’s political convulsions may stand in its way – the Defra sponsoring minister is Michael Gove, who, given the frenzy at the time of writing, may or may not there tomorrow.

But the embedding of environmental law under the backstop does not stop there. Laws may be fancy, but enforcement may be nil. The EU is all too aware of this. So in Art.3 of Annex 4, the UK shall

ensure effective enforcement of Article 2 and of its laws, regulations and practices reflecting those common standards,…”

It shall also ensure

that administrative and judicial proceedings are available in order to permit effective and timely action by public authorities and members of the public against violations of its laws, regulations and practices, and provide for effective remedies, including interim measures, ensuring that any sanctions are effective, proportionate and dissuasive and have a real and deterrent effect.

But more. The UK shall also implement the effective domestic monitoring, reporting, oversight and enforcement of its obligations by an independent and adequately resourced body or bodies.

And this body

shall have powers to conduct inquiries on its own initiative concerning alleged breaches by public bodies and authorities of the United Kingdom, and to receive complaints for the purposes of conducting such inquiries. It shall have all powers necessary to carry out its functions, including the power to request information. The independent body shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure, with a view to seeking an adequate remedy.

Sounds a bit like the EU Commission, doesn’t it, but with local enforcement powers.

These are very much despatches from the front. But they reveal, if nothing else, what the EU want out of any Brexit deal, whatever stasis there may be in the UK over it.

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