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It is now clear that the EU/UK Withdrawal Agreement negotiated mainly by Theresa May was a capitulation to the Transnational Big Business interests in the Confederation of British Industry and other “Remainer” elements who knew that parts of it – in particular the Irish Protocol – would keep the UK entangled indefinitely in the EU and its Court of Justice.

It provides that EU rules regarding State aids and customs that were thought necessary in Northern Ireland to ensure that there was no physical border between North and South could extend to the whole of the UK. This would keep Britain as a whole under the jurisdiction of EU law post-Brexit – the Irish tail continuing to wag the British dog – which is what the “Remainers”, and of course the EU, have always wanted.

An alternative and perfectly reasonable approach for after the UK has left the EU would be for the UK Parliament to pass a new law requiring all exports continuing to the EU to meet all EU requirements on pain of criminal sanctions. As only about 6% of UK business firms are involved in exports to the EU, the other 94% could be exempted from EU laws without that having any adverse effect on the EU.

After all, the previous need for EU/UK border checks was removed when the EU’s Single European Act came into force, which was only possible because the House of Commons had passed the European Communities (Amendment) Act 1986 to approve that treaty.

If the existing UK law provides a sufficient guarantee to the Irish and EU authorities that there is no need to check imports from the UK at the North-South Border, as it does, then there seems no good reason why a new UK law could not also provide such a guarantee.

This proposal was advanced by a high-powered group including former senior British Commission official Jonathan Faull in an August 2019 paper entitled “An Offer the UK and the EU cannot refuse“.

Unfortunately both did refuse it. It was also advocated by UUP politician Lord Empey. It has just been mooted by a Brexit-supporting correspondent, Dr Denis Cooper of Maidenhead, in a letter to the “Irish Times” which he has copied to me, with accompanying references reproduced for your information below.

Unsurprisingly, the “Irish Times” has not published this letter – at least not to date – for any constructive proposal that might advance a sensible Brexit is anathema to the Eurofederalist editorial group which runs that newspaper.

This proposal would seem to be particularly relevant in the context of a possible “No Deal” Brexit as meeting the valid concerns of both sides in that event.

The sheer hypocrisy of the EU side in this matter is breathtaking: a hard electronic border on the island of Ireland is a threat to the Good Friday Agreement, but a near identical tariff border down the Irish Sea is not, even though it terrifies Unionists and covers ten times as much trade. Remember: the Good Friday Agreement requires the consent of both sides!

The hysteria over the British Government’s statement that the will of the Westminster Parliament will override EU law in the UK post-Brexit reflects the dismay of “Remainer” interests that this prospect would disappear in the event of “No Deal” on a trade agreement. For the Brexit supporters are now creating their own “backstop”.

It is legal ABC that the unwritten Constitution of the UK is that the Crown in Parliament is sovereign and can therefore pass legislation that is in breach of any external treaty; and there are many precedents for that. The international law of treaties governs
relations between sovereign States. The EU does not claim to be a State, but an arrangement between States, so that any treaty with it does not have the status of a normal inter-State treaty. The UK Internal Market Bill does no more than assert this classical
British constitutional doctrine.

The probability still is that there will be an EU/UK trade agreement – in which case the current fuss will be irrelevant. The far bigger
danger for those who want to see the democratic majority vote of the 2016 UK referendum implemented by means of a real Brexit, is that British Big Business as represented by the CBI and other “Remainer” interests will still succeed in pressurising the British Government to sell out on fisheries, State aids and all sorts of other matters when it come to an EU/UK trade agreement between now and the end of the year.

It is far better for British democracy – and ultimately for both parts of Ireland too – that the UK should leave the EU WITHOUT a special trade deal and continue trading with the EU on the same basis as the USA, Japan, Australia and the other 160 or so world States that are outside the EU and have no special sovereignty-compromising trade deals with the power-grabbing EU empire.

References and further reading

An Offer the EU and UK Cannot Refuse

• “An Offer the UK and the EU cannot refuse“, 22 August 2019
• “Brexit: Backstop plan by Sir Jonathan Faull dismissed by EU“, BBC, August 27 2019, https://www.bbc.co.uk/news/uk-northern-ireland-49488844 “EU officials have poured cold water on alternative proposals for the Brexit backstop by a former British European Commission official. Sir Jonathan Faull had suggested the EU and UK could maintain their own customs and regulatory regimes while using their laws to protect each others’ markets . . .This would mean goods would not have to be checked at the frontier.” A similar proposal was also made by the UUP politician Lord Empey, and that was also rejected out of hand.
• “Brexit: UUP sets out Irish border backstop alternative plans“, BBC, 1 September 2019, https://www.bbc.co.uk/news/uk-northern-ireland-49545492 “The plans would include the creation of a new criminal offence for knowingly transporting non-compliant goods through the UK to the EU … the UUP’s alternative proposals were similar to those put forward in August by former British European Commission official Sir Jonathan Faull … Sir Jonathan has suggested the EU and UK could maintain their own customs and regulatory regimes while using their laws to protect each others’ markets.”
• “Brexit: Remain in customs union and single market to solve border issue, Ireland’s European commissioner tells May”, 26 November 2017, https://www.independent.co.uk/news/uk/politics/ireland-border-brexit-latest-theresa-may-customs-union-phil-hogan-northern-a8076271.html “Mr Phil Hogan, the EU’s agriculture commissioner, said Ireland would ‘play tough to the end’ over the border issue, and said it was a ‘very simple fact’ that ‘if the UK or Northern Ireland remained in the EU customs union, or better still the single market, there would be no border issue’.”
• “No. 10 has realised the Brexit Deal’s true horrors“, Sherelle Jacobs, Daily Telegraph, Wednesday 10 September 2020, https://www.telegraph.co.uk/politics/2020/09/10/no-10-must-stand-firm-flouting-international-law-face-eu-expansionism/ “Most exasperating of all is the Tory failure to call out Ursula von der Leyen’s pompous Tweets invoking “pacta sunt servanda”(agreements must be kept). The EU frequently and shamelessly violates international law, not to defend its sovereignty but to extend its reach and neutralise threats.   The EU’s fishing activities in the waters of occupied Western Sahara have violated international law. The EU’s penchant for instructing member states to defy Security Council rulings that threaten its supremacy violates international law. So too its track record for sending migrants back to North Africa and Turkey. Who is really the rogue state, Britain or the EU empire?   And while they are at it, Brexiteers should call out Remainer posturing. Take former cabinet secretary Lord O’Donnell’s claim that the civil service’s top lawyer Jonathan Jones had spoken “truth to power” by way of his “honourable resignation” in protest against No 10. This is the same Lord O’Donnell who, as Whitehall chief in 2011, blocked the publication of documents the Chilcot inquiry said were crucial to its Iraq war probe. A war that, lest we forget, was a violation of international law.”

Filed under: Brexit, Irish Backstop, legal, Solutions | Tagged: Withdrawal agreement |