Initially published in The Daily Telegraph by Martin Howe QC, Chairman of Lawyers for Britain
https://www.telegraph.co.uk/politics/2019/10/18/flawed-outcome-tolerable-price-pay-freedom/
First, the positives. Boris Johnson's deal is miles better than Theresa May's ghastly capitulation. The Northern Ireland backstop protocol in the Withdrawal Agreement (WA) has removed Great Britain from being locked into a vassal-state customs union with the EU.
Secondly, the Political Declaration (PD) setting out the future EU-UK relationship now foreshadows a Free Trade Agreement under which the UK will be able to operate its independent trade policy, instead of being locked into the EU's external customs tariffs.
Thirdly, references in the PD to the UK aligning its rules to EU rules have been deleted, and "level playing field" commitments have been decoupled from closely shadowing the EU rules on competition and state aid.
These three changes interrelate with each other in a beneficial way. Together, they transform the dynamic under which the long term UK-EU agreement will be negotiated. Unlike under the May deal, the UK will have the real option of walking away if the terms are not good enough. But the revised WA still contains many negative features. Unfortunately all the text of the WA outside the backstop protocol will be untouched. The most important and damaging feature which remains is the long-term subjection of the UK to rulings of the European Court of Justice.
May's WA contains a clause, based on the EU's agreement with Ukraine, which means that the nominally independent arbitration panel set up to decide disputes would have to refer issues of EU law for decision by the ECJ. This clause in the WA would apply long term: for EU citizens' rights, at least for the lifetime of EU citizens in the UK and their children. The revised political declaration will include a similar clause in the long-term relationship agreement with the EU. Secondly, the WA would still contain the so-called transition period. The UK would be subject to all EU laws – those that exist and those that are brought in – but would not have a vote or veto.
The third big problem is that the WA imposes huge financial obligations on the UK well beyond those under international law. This money will be unconditionally payable, whether or not the EU offers the UK a satisfactory long-term trade agreement. The deal is much much better than May's deal. But even with the improvements, the deal is much worse than would have been negotiated by a competent government from the outset (in other words, if this hadn't been a renegotiation), and worse than a no-deal alternative.
But is it tolerable, in order to prevent Brexit being derailed altogether? This question is more political than legal.
Many Brexit-supporting politicians voted for the May deal because they thought it was preferable to the risk of not getting Brexit through at all. But the improvements show it was right to reject the May deal. So I can understand a political judgment that the revised deal is tolerable as a price for the greater prize of regaining our freedom. The problem, however, is that, by law, the UK cannot ratify an Article 50 Withdrawal Agreement without an implementing Act of Parliament. A Bill has been drafted with 175 clauses and multiple schedules. The Government will have no control over what amendments are tabled by the last-ditch anti-Brexit majority in both Houses. Amendments could be made – for example either for a second referendum, or requiring the Government to negotiate changes to the deal – which would turn a just-tolerable deal into a disastrous one.
Martin Howe is chairman of Lawyers for Britain