THE BLOG
02/03/2018 14:16 GMT | Updated 02/03/2018 14:16 GMT

What's Happening To Brexit?

Both sides should be in uproar

PA Wire/PA Images

Whether you voted Leave or Remain in the referendum, the draft EU Withdrawal Agreement should be of huge concern to you. Yet for all the media talk of Northern Ireland being ‘annexed’, it seems that the rest of this Agreement has gone completely unscrutinised. I can’t comprehend why.

If you voted Remain, you should be unhappy that if this goes through the UK will get the worst of both worlds. If you voted Leave, you should be hugely concerned by the text. Yet everyone, on all sides, seems to be ignoring it. This should be in everyone’s interests to point out, but instead all we get is...silence. Tumbleweed.

Do you remember the compromise over the sunset clause that would stop the European Court of Justice overruling the UK after 8 years? Well it’s still here, in Article 151 - but it only refers to ‘Part Two’ of the Agreement:

Where, in a case which has commenced at first instance within eight years from the end of the transition period before a court or tribunal in the United Kingdom, a question is raised concerning the interpretation of Part Two of this Agreement, and where a court or tribunal in the United Kingdom seized with that case considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question.

There’s no time limit on anything outside Part Two of the Agreement, and most of the ECJ’s ability to rule over the UK comes in Part Six - for example in Article 163(1):

The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

Think about it: would we be accepting this in any other Agreement with any other country? Suppose we were negotiating an agreement with the USA. Would we agree that a US court should have the sole right to rule on any disagreement that arose between the UK and the USA? Isn’t this precisely why the Left and Right of British politics united to fight against TTIP (though if anything, this is worse - as those ‘dispute mechanisms’ weren’t specifically only American courts)?

The European Court of Justice will have the power to fine the UK under Article 163(2):

If the Court of Justice of the European Union finds, in proceedings brought before it pursuant to paragraph 1, that the Union or the United Kingdom, as the case may be, has not complied with its judgement, it may impose a lump sum or penalty payment on it.

It gets worse. The European Court of Justice will be able to oversee not just Brexit, but any Agreement between the UK and the European Union on anything according to Article 163(3):

The Union or the United Kingdom may decide to suspend: (a) parts of this Agreement other than Part Two; or (b) parts of any other agreement between the Union and the United Kingdom, under the conditions set out in such agreement. Any suspension under this paragraph shall be proportionate to the breach of obligation concerned, taking into account the gravity of the breach and the rights in question. It shall be subject to judicial review by the Court of Justice of the European Union.

It’s exactly the same situation with the so-called ‘divorce bill’ which the UK is expected to pay to the European Union. The size of that bill will be calculated by the European Union - Article 133(2) for example says:

The Union shall calculate the amount of commitments referred to in paragraph 1. It shall communicate that amount to the United Kingdom, adding a list with the reference of each commitment, the budget lines associated, and the amount for each associated budget line.

What if the UK disputes the size of a bill? Well first of all it would go to the Committee on the Financial Provisions established under Article 158(1):

1. The following specialised committees are hereby established: ... (e) the Committee on the financial provisions.

If that didn’t resolve the issue, it would go to the Joint Committee (a bilateral UK-EU committee) under Article 162(1).

Without prejudice to Article 153, the Union or the United Kingdom may bring any dispute which concerns the interpretation or application of this Agreement before the Joint Committee.

But if the UK and the EU still didn’t agree, who finally decides? Once again, it’s the European Union’s own courts under Article 162(4):

If the dispute has not been settled within three months after it was brought before the Joint Committee...the dispute may be submitted to the Court of Justice of the European Union...The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

Who decides how much money the UK has to pay to the European Union? Under this draft Agreement, it’s the European Court of Justice. How could any Brexiteer reasonably claim that this Agreement regains British sovereignty and democracy? European Union courts would still override our own.

How could any Remainer not be concerned about being asked to sign a blank cheque to the EU?

Both sides should be in uproar. Yet Tories are in disarray, with former Prime Minister John Major attacking the Brexit that current Prime Minister Theresa May is delivering. Labour isn’t much more united, with Tony Blair and Kate Hoey as diametrically opposed as it’s possible to be (with Jeremy Corbyn, ironically, somewhere in the middle). And UKIP responded by suggesting that Ireland should leave the EU, instead of engaging with the real issue.

Our finances are at stake, our sovereignty is at stake, and our future is at stake. We cannot afford to sleepwalk into an Agreement like this one, even if the Irish border issue were completely resolved.