Boris’s ‘deal’ won’t take back control

A Brexit that limits democracy is not a Brexit worth having.

Jon Holbrook

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Topics Brexit Politics UK

Boris Johnson led the Leave campaign with the slogan ‘take back control’. When he made his concluding remarks at the Wembley Arena debate, he was cheered by millions when he declared ‘that this Thursday can be our country’s independence day!’. Millions voted to leave the EU because it met their aspiration for greater democracy. They wanted powers to be repatriated from the EU in favour of their elected representatives in parliament.

And yet, more than three years later, the government, now led by Boris Johnson, has been ground down by a political class that has never accepted that aspiration for greater democracy. It has responded to the popular desire to ‘take back control’ by seeking to take power from the EU in order to vest it in technocrats empowered by treaties, such as the one that Boris Johnson is currently seeking to have approved by parliament.

This is not a Brexit ‘deal’. Boris Johnson is proposing more than a deal. It is a treaty, a document that will regulate by force of law. A treaty is essentially a contract that sets out what the signatories can and cannot do. In other words, a treaty pre-determines and regulates future conduct. It takes issues out of the political sphere, in which the people engage in a dialogue with their elected representatives. And it places these issues in a technical sphere, in which the people and their elected representatives are mere observers of judges, who interpret what the treaty requires, and of technocrats, who do as the treaty requires.

The prospective treaty known as the ‘Withdrawal Agreement’ – most of which was negotiated by Theresa May, and kept following Johnson’s renegotiation – sets out in a ream of paper what Britain is required to do during a transition period, which is set to start when Britain formally leaves the EU and last until the end of next year (subject to any agreed extension). The phrase ‘Withdrawal Agreement’, therefore, is also misleading. The treaty establishes that during transition Britain will remain subject to the EU laws and policies that the British people voted to be freed of. As the recital says, during transition ‘Union law, including international agreements, should be applicable to and in the United Kingdom, and, as a general rule, with the same effect as regards Member States’. This means that during transition Britain will be subject to EU-determined laws on free movement, trade, state aid, competition policy, agriculture and fisheries. In fact, during transition the UK will remain subject to almost the entire panoply of policies covered by EU laws, just as it is now.

The principal bits of the EU that Britain will withdraw from under this ‘withdrawal’ agreement are the EU’s decision-making institutions, from the EU Council and Parliament down to every other EU institution, body, office and agency (Article 7). This means that during transition, Britain will be subject to the EU’s laws but will have no say in how they are framed or applied. Britain will be subject to rule by a body over which it has no voice, vote or veto. This treaty will not take back control — it will leave control vested in the EU for the period of transition. To all intents and purposes, during transition, the UK will be governed by a foreign power in respect of all policy areas over which the EU is competent (and that is rather a lot).

Treaties of this nature are only entered into by states that have been conquered or defeated. In Britain’s case, its political class has been defeated, at the ballot box by a public that voted in June 2016 to take back control. But rather than accept that power should return to the people, the UK’s Remain-dominated elite would prefer to be ruled by a foreign institution, the EU, than by a parliament accountable to its electors.

And this won’t end with the transition period, either. Transition has always been about getting the UK used to supplicant status. Some commentators have noted with concern one aspect of this domination: that the European Court of Justice (ECJ) will be the ultimate decider of all issues that arise under the treaty. Outside of the colonial era, international treaties have invariably provided for dispute resolution by independent arbitration, rather than by a court that belongs to the other treaty party. As Dr Carl Baudenbacher, a Swiss lawyer who recently retired as president of the EFTA Court, said: ‘It is absolutely unbelievable that a country like the UK, which was the first country to accept independent courts, would subject itself to this.’ And Martin Howe QC, who chairs Lawyers for Britain, predicted that ‘we will have bitter cause to regret such concessions in future years as unpredictable and activist judgements come out from the ECJ, which the UK and our parliament will have no choice but to obey’.

The reality of this treaty has been glossed over because the British political class has framed the post-referendum debate to ensure that a No Deal exit is off the agenda. As a result, many Brexiteers, even the so-called Spartans of the European Research Group (ERG), have decided that Boris Johnson’s ‘deal’ must be supported because the choice is between no Brexit or Brexit with his ‘deal’. But this framing of the debate means that the choice is between rule by Brussels (with EU membership) or rule by Brussels (with an EU treaty).

Tory Brexiteers argue that transition will only last for about 14 months (until 31 December 2020). And some in the ERG have even claimed that transition will pave the way for a No Deal exit on 1 January 2021. This argument ignores political reality. As Sir Ivan Rogers, the former UK Brexit negotiator, observed: the EU’s aim has always been to ‘maximise leverage during the withdrawal process and tee up a trade negotiation after our exit where the clock and the cliff edge can again be used to maximise concessions from London. So that they have the UK against the wall again in 2020.’

But by 2020 the UK will be in a weaker position to negotiate with the EU. It will have paid the EU a colossal exit fee, which is not legally required, of about £39 billion, so that bargaining chip will have gone. And the EU will have had 14 months to pass and apply laws that suit the needs of German exporters, French fishermen and European bankers that will have left the UK desperate to exit transition. But worst of all, the UK’s political class will, by January 2021, have a trump card: it will be able to sign away chunks of British sovereignty on the grounds that, in comparison to transition, the UK will be regaining a few modest powers.

The outline of Britain’s future relationship with the EU is prefigured in the Political Declaration. It begins by stating that the ‘basis for cooperation’ is ‘core values and rights’ that ‘incorporate… the framework of the European Convention on Human Rights’ (Paragraph 7). On this basis, the odious ECHR looks set to be cemented into the British constitution with a further treaty.

The Political Declaration then refers to the creation of a free-trade area which will be anything but ‘free’. What is proposed is ‘deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field’ (Paragraph 21). Policies covering ‘state aid, competition, social and employment standards, environment, climate change, and relevant tax matters’ are specifically mentioned as needing to be regulated by the future treaty (Paragraph 77). In other words, the UK’s future relationship with the EU will be premised on renouncing parliament’s right to determine swathes of economic and social policies.

In recent years, treaties have become a powerful tool for restricting democracy. Treaties with a limited and specific focus, which either party can unilaterally end, should not threaten democracy. In the Brexit context, several such treaties would be required, for example to keep planes flying and lorries rolling. But the treaties envisaged by today’s Remain-dominated political class – first a 535-page Withdrawal Agreement, then a future relationship premised on embracing the ECHR – do threaten democracy. They seek to turn political issues into technocratic issues. They will be drafted by a political class that loathes the idea of ordinary people determining policies and laws democratically. This political class loves the idea of people like them pre-determining policies and laws with the stroke of a draftsman’s pen, laws which are then interpreted and applied by other people like them – well-paid technocrats who can lord it over ordinary people with the authority of a treaty.

Boris Johnson’s proposals will shatter the paramount principle of any liberal democracy: that its people are sovereign. Membership of the EU always tested that principle, but at least it could be said that EU membership was about pooling sovereignty, rather than surrendering it. But under the ‘Withdrawal Agreement’ there will be no pooling sovereignty, only a surrendering of sovereignty to a foreign power. Once this principle has been abridged, the UK will be at the EU’s mercy when it comes to accepting onerous treaty terms in the future relationship.

The vote to leave the EU was a vote for democracy. It expressed the desire for ordinary people to repatriate laws from Brussels and vest them in a parliament where lawmakers would be answerable to the people. Brexit has been derailed by a political class that will not accept the impulse behind Brexit. But that impulse will not die, and it now needs to be channelled into rejecting Boris Johnson’s ‘deal’. The British people voted to take back control — they should settle for nothing less.

Jon Holbrook is a barrister. Follow him on Twitter: @JonHolb

Jon will be speaking at the session ‘Constitutional Crisis: do we need a British Bill of Rights?’ at the Battle of Ideas festival in London on 2 November.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

Comments

Andrew Clitheroe

1st November 2019 at 2:40 pm

If more democracy is always better, why don’t we use it to fly planes?

Never mind the ‘political class’ loathing the idea of ordinary people determining policies and laws – anyone not thoroughly terrified by that prospect hasn’t spent long enough thinking about it.

Duncan Philps-Tate

1st November 2019 at 10:28 pm

Your idea for autocracy has worked so well in all the places it’s been tried: Germany, Russia, China, Venezuela. Admit it: you just don’t think we the people can be trusted and you personally should be in sole charge.

John Marks

24th October 2019 at 2:32 pm

Boris’s deal is just a tweaked version of May’s surrender.
It’s Alistair Williams’s “Burger King” BRINO again:
https://www.youtube.com/watch?v=yGL-XJPuCuo&feature=youtu.be

A Game

23rd October 2019 at 3:37 am

If an extension is granted, one that is longer than a few days or a week or two to finalise getting the Surrender Treaty Mark II through, then the Tories need to campaign on Clean Break Brexit. If this is as good as it gets, and the EU happily say, after being so generous to sit down with the new PM, that the book is closed forever… Then there is nothing more to be said.
The article paints a starkly clear picture of the realities Brexit is up against, the vested interests, marshalled against it, and that’s within the UK. Then you have the EU… They are proven sharks. Its not a stretch at all to believe their end game is “…about getting the UK used to supplicant status.”
Its beyond naïve to think anything less.
If the Tories campaign on Getting Brexit Done and this is their serious version of it… good to know before an election.
Frankly, how BoJo and Co, having witnessed the torturous path taken by the UK for the last 3 years could be happy, given a choice, post GE with a probable victory, to still push this turd forward… then that says everything everyone needs to know about the Tories’ version of Brexit.

Tories win a GE… its leave, straight away, no more chat, no more Treaties, no more masochism.
If the EU grant an extension based on those letters Boris sent… then I would see that as an act of aggression on the EU’s part. One should only be granted after a sincere request from the PM of the UK is made.
To keep the Tories on the straight and narrow, a healthy Brexit Party presence in the parliament would be excellent (clean up those Labour Leave seats and boot some of the Remainer Tories out for good) and even better, a Clean Break Brexit Coalition.
There needs to be some steel in this spine, somewhere, at some time.

Very nice article. The summation of why the Rule of Treaty is so beloved, how they are geared to work against democracy, how institutions like the ECHR are designed to dictate policies and law, bypassing consensus, excellent. It obviously needs to be said LOUD, REPEATEDLY.
There is a strange refusal for people to understand that how Boris is selling it is a lie. That he is selling it this way, that he isn’t admitting the transition period needs to be gotten through, then all of that glorious freedom over fisheries will kick in… it shows he loves this deal. And the path he is taking, opens up all of the obstructive arguments for the opposition. They get to whinge about losing the EU “protections” they so enjoy. They are doing each other’s dirty work, ironically.
Boris is pretending freedom exists with the Treaty. The opposition are pretending that freedom will undermine the UKs way of life.
As the article winningly describes… neither is correct or true. No freedom, no undermining, no loss of conditions. It would be uproariously funny if it wasn’t so awful.

On a side note… completely funny that Remainers are now finally, finally coming clean. The lies, the exaggerations, Project Fear… now its the long whine about not being able to just pop over to Europe to holiday, live or work. Ha! Yeah… everyone already knew that that was the glue to your profound attachment to the EU. The political? The economical? Meh.

Carlo Guli

21st October 2019 at 11:21 pm

No to the treaty. Let’s get our voice heard: https://petition.parliament.uk/petitions/254329

michael savell

21st October 2019 at 6:02 pm

Jane 70,we are all heading for total meltdown if we stay or go, so who do you trust more,Trump or Merkel..If the former the better to leave now with no deal.We certainly do not want to be in the position Germany was just before ww2 but it’s certainly obvious we shall NEVER be able to rid ourselves of the EU.At least we shall know if we have any friends left but I wouldn’t bet on it.English MP’S and MEP’s are at fault because they have made no impact on european policy while indulging themselves,with no responsibility,at our expense.

a watson

21st October 2019 at 7:08 pm

A closer relationship with Australia, Canada etc and the USA would be far more preferable to staying within the EU – just consider the last three years. Britains natural position is to stay clear of any kind of involvement economically with the continent and traditionally to have free trade agreements with the rest of the world.

James Knight

21st October 2019 at 5:11 pm

The irony is that Johnson’s “deal” is the real “surrender act”.

Marvin Jones

22nd October 2019 at 10:56 am

You could be so right. No details on getting and controlling our fishing borders, and not a word about stopping “freedom of movement” and the eligibility for half a billion foreigners from strolling into England and claiming benefits and the whole picnic basket as well. What else has he surrendered to get this mysterious deal done so quick?

Andrew Chapman

21st October 2019 at 1:13 pm

Note that the same Martin Howe has backed the deal as ‘just-tolerable’. After transition, it mainly depends on what sort of FTA we negotiate. With a Leave government we would do OK. WA negotiated by a Remain government and it is certainly difficult to extricate ourselves from it – but the Treaties fall away at the end of the transition.

Geoff Cox

21st October 2019 at 1:59 pm

Andrew – that is exactly the way I see it. By signing to the WA, we at least move forward. But a lot of work is still needed by leavers to make sure we keep going forward and that there is no backsliding. A committed Leave Government and Parliament is needed. But whether we get one after we are forced to roll the dice again, is another matter. Can Boris be trusted? Not as much as Farage and one or two others I could mention, but he is the only one that can do it.

People should note how little remainers want this deal – that’s what makes me feel better about it.

Geoff Cox

21st October 2019 at 12:24 pm

Here’s a pretty good summary of the Withdrawal Agreement from UKIP Leader Richard Braine https://www.youtube.com/watch?v=vHt8GpGTORo

quaybored

21st October 2019 at 11:51 am

A Trump Trade Deal would also be a ‘treaty’. Would that automatically make us the 51st state of the USA?

Barney Rubble

21st October 2019 at 12:01 pm

That would depend upon the terms, wouldn’t it.

Marvin Jones

21st October 2019 at 11:49 am

Unlike many literate and articulate commenters in this magazine, I am not very knowledgeable on politics, I rely on vocabulary used, facial expressions, mannerisms, logic and common sense. SO! after three and a half years of being hoodwinked by May, Robbins and the well chosen rabid remainers, into the lies, deceit and the kicking of the can so far, it would be envied by the best rugby kicker on the planet, we now have a sudden revelation of a wondrous deal by Boris and all the radical leavers, achieved in just a couple months? This is a rancid surrender, and the first two things that will be given up are “free movement” and “our fishing rights”. BRINO FOREVER!

quaybored

21st October 2019 at 12:32 pm

Giving up our freedom of movement was part of the Spiked Brexit plan all along.

Neil McCaughan

21st October 2019 at 11:36 am

I have never known whether Johnson means a word he says, and I still don’t.
This so-called deal (a huge bill for nothing tangible) and its failure may simply be a mechanism to put blame on the EU’s negotiators and the quisling rabble in our parliament.
Let’s hope so.

Kathryn Barbara

21st October 2019 at 11:36 am

The best article on Boris’s “deal” that I have yet read. So clear and precise. My electoral options become clearer. Should I get the chance!

steve moxon

21st October 2019 at 10:21 am

Excellent piece from John Holbrook as usual.
The Brexit Party evidently has got this right.
And people intinctively have got it right with no-deal being the option that got the biggest support.
It looks like I’ll be maintaining my 100% record of not voting Tawdry as well as never ever voting Liebore.

Jerry Owen

21st October 2019 at 10:21 am

An excellent article neatly explaining just how bad the deal really is, I didn’t even vote for a deal, I voted leave.
This really is treason.

Marvin Jones

22nd October 2019 at 12:19 pm

The one and only way that will economically , logically and beneficially be almost perfect for us in leaving the EU is this. At a meeting of meetings, walk into the room, clear the table of everything, inform them that we are leaving on WTO terms, AND THEN! ask them politely, now what are the crucial things that we both have had for 40 odd years that we just cannot survive without. Then we deal?

Modern Money

21st October 2019 at 10:18 am

The real issue for me is….

Had the establishment managed to stop the brexit party by pretending to have delivered brexit ?

This is key when we move forward.

Modern Money

21st October 2019 at 10:20 am

* Have * not had.

Jim Lawrie

21st October 2019 at 9:59 am

Even if The Brexit Party were to win a majority, the judges will declare illegal any Act of Parliament they do not approve of. The majority, or even a large minority, no longer rule.
Parliament has abdicated power and will see that process through to the end before any vote is held.

Bercow and the ringleaders must be tried. I wonder will The Maughams and O’Neills of this world be so keen for us to see the communications that took place between that lot.

Jim Lawrie

21st October 2019 at 9:46 am

We will be bombarded endlessly during transition with the message that it was the fault of Brexit and the only option is to cancel it. But that will need an in-out referendum.
Johnson is a remainer playing the martyr whose line is “my hands were tied.”

Barney Rubble

21st October 2019 at 3:24 pm

Jim Lawrie, I don’t think that BJ is a closet-remainer but I do think that he may be too weak or incompetent to get the job done. Of course, the remainer MPs know that and sense his weakness, which is why they pulled the Surrender Act and then this Letwin business.

Willie Penwright

21st October 2019 at 9:36 am

Of course it’s not the best deal; it’s not even a good deal but when faced with a binary choice we should grab it, as the alternative is EU for evermore. Once the control of the EU is broken or even cracked, it will be possible for an independent government to make further changes but if we fail to grasp this opportunity, the elite will make damn sure we never get another chance.

a watson

21st October 2019 at 10:38 am

So this deal or remain? Are you joking?

Barney Rubble

21st October 2019 at 7:39 am

I was on my way back from holiday on the day of the referendum result. I was actually sitting in the departure lounge waiting to board my flight when I managed to hook up with the airport wi-fi and check the news. We had won! Against all the odds we had only gone and bloody well won. I was so elated, I could have flown home without the jet.

But, after the initial euphoria, the reality came seeping in. Yes, we had won the vote but I knew, deep down, that our masters would never allow us to leave and that they would deploy every ruse, lie, misdirection and legerdemain to frustrate us.

I now see that Brexit is not an event but has evolved into a process; a long, hard, grim war of attrition that is only in its early stages. I believe that we will prevail eventually but I fear that it may take another civil war to do so.

Lloyd Reid

21st October 2019 at 5:09 am

Stitch up all round

Andrew Best

21st October 2019 at 1:46 am

Gussied up Theresa mays deal

God save us from the eu

Noggin The nog

21st October 2019 at 1:46 am

Thank you Mr. Holbrook for an excellent and concise review of the issues that the ordinary individual of our country faces.

They are formidable. Akin perhaps to the Treaty of Versailles.

Like you I have spoken with Conservative MP’s regarding the issues relating to BINO. The conversations were not productive. I cannot see an easy option if one even exists. It is heartbreaking.

This is truly is a case of sedition. Will it end in the same way as for Pre WW2 Germany, who knows?

I am now well into my retirement years but I do know that my uncles – ex Royal Marine Commando and a second who was a Royal Marine ambulance Driver (who made it all the way to Hamburg) – plus my Canadian relatives – New Westminster Reg – one who never made it back from Monte Casino – all would be greatly ashamed by the cowards that inhabit Westminster today.

For the first time in my life, I can say that I am ashamed to be British.

ZENOBIA PALMYRA

21st October 2019 at 12:19 am

God help this country

Pedro Dias

21st October 2019 at 12:59 am

And save us from Brexit…

Jim Lawrie

21st October 2019 at 10:00 am

Pedro you are a wee nyaff who contributes nothing to these pages.

Jerry Owen

21st October 2019 at 10:18 am

P Dias / Z Palmyra
Can you give us the case for remaining in the EU ?
Can you also tell us how much control we have within the EU , how we can decide EU policy and how we can remove the commissioners and replace them with commissioners we want if we don’t agree with their decisions ?

Jane 70

21st October 2019 at 1:29 pm

And please enlighten us : what is desirable about a parliament which has spent more than 3 years obfuscating, obstructing and using every legal and parliamentary manoeuvre to defy the popular vote?
The citizens of Greece, Italy and the Visegrad nations aren’t celebrating EUtopia at this time are they?
The eurozone is developing fault lines, Germany is heading for recession and Hungary is in open defiance of the cadres in Brussels.
What’s to like?

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