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Email. info@brugesgroup.com
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.
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The Revised Withdrawal Agreement and Political Declaration: a briefing note

withdrawalagreeementbanner

The Revised Political Declaration

Introduction

So far as we are aware the only material changes in the Withdrawal Agreement (Treaty) are to the NI Protocol, which means that the critical ECJ oversight and Art 184 link to the Political Declaration remain. I am told by UKREP that there are two changes to other Articles in the Treaty but they were unable to tell us which ones.

Executive Summary

The Treaty permanently restricts our military independence, demands payment of an unspecified sum, prevents independent arbitration, grants EU officials immunity from UK laws, leaves us with EIB contingent liabilities running into tens if not hundreds of billions and will impose punitive laws on the UK during a transition which is likely to be extended until mid 2022 (just a few months before the next General Election).

The Political Declaration is such that a future FTA with the EU is made unpalatable because it will restrict our foreign policy and military independence as well as policies in trade, tax, fishing, environment, social and employment, competition and state aid. Free movement is replaced with vague notions of "mobility" and "non discrimination".

Specific Provisions in which the Withdrawal Treaty:-

1.Restricts Parliamentary independence

Just as before, the Court of Justice of the European Union (ECJ) governs the entire Treaty and EU law takes precedence - binding future British Parliaments and requiring judges to overturn laws passed by the British Parliament if the ECJ considers them to be inconsistent with obligations in the Treaty. (Articles 4, 87, 89 and 127).

2. Restricts independent trade policy

Although there is no longer any reference in the Political Declaration to "building on the customs territory" the new provisions may still create difficulties for the UK in agreeing trade deals because any FTA with the EU must satisfy principles and objectives that include "ensuring a level playing field for open and fair competition" (para 17) and "deep regulatory and customs cooperation" (para 21). This will make it difficult for the UK to reduce non-tariff barriers as a means to facilitate a trade deal with a third country - particularly the United States.

The Political Declaration requires that a FTA "ensure no tariffs, fees, charges or quantitative restrictions across all sectors with... ambitious customs objectives that are in line with the Parties' objectives and principles" (para 22). This does not exclude the possibility of a Customs Union. It is not clear how the UK could protect its industries against dumping by third countries with which the EU has FTAs.

The problem also remains that there is no definition in the Withdrawal Treaty for the word "goods"

and so its scope will be interpreted as the ECJ determines from time to time (Articles 127, 184).

3. Prevents an independent tax policy

The Political Declaration still obliges the UK to adopt a future relationship which will impose EU State Aid rules and "relevant tax matters" on the UK (para 77), the EU specifically intends to curb the UK's ability to have "harmful tax practices", the Withdrawal Treaty also applies EU law to the UK during the transition period (Article 127) - allowing the EU to sue the UK, including infringement proceedings for: as yet unidentified breaches of State Aid rules (which can take the form of tax exemptions); and billions in unpaid VAT on commodity derivative transactions dating back to the 1970s (Articles 86 and 93).

4. Controls Fishing

The CFP continues in UK waters during the transition period (which can be extended) but the UK will have no say in its implementation or enforcement. After the transition, the Political Declaration requires "cooperation on... regulation of fisheries, in a non-discriminatory manner" (para 72), which is code for continuing the current arrangements for EU access to UK waters.

The Political Declaration also requires that any FTA "ensure service providers and investors are treated in a non-discriminatory manner, including with regard to establishment" (para 29) - this would prevent the UK from introducing the modern equivalent of the Merchant Shipping Act 1988 which sought to protect the British Fishing Fleet's quota from being bought-up by foreign owners (and which was the subject of the infamous litigation in Factortame).

5. and 6. Prevents independent military action

The Treaty permanently restricts the UK's sovereignty by preventing the UK from taking "any action likely to conflict with or impede" EU foreign policy (Article 129(6)). It is instructive that this contrasts with almost all the other sub-sections of Article 129 - each of which include language limiting them to the duration of the transition period.

It is also very revealing in the Political Declaration that critical parts of the section on foreign policy and security are not reciprocal. For example, para 99 confirms that the future relationship will not "prejudice the decision-making autonomy of the EU" but no such language is afforded to the UK - we are merely permitted to "maintain the right to determine how [to respond] to any invitation to participate in operations or missions".

Additionally, in the Political Declaration the parties "agree to consider" security collaboration in the European Defence Agency, the European Defence Fund and PESCO "to the extent possible under [EU law]" (para 102(c)) which is a prescriptive obligation and not merely a permissive option. Despite making payments to the European Defence Agency during the transition period, British troops in EU battlegroups will not be led by British staff officers (Articles 129(7) and 156-157).

7. Restricts Foreign Policy

The UK will be bound by international agreements concluded by the EU despite having no influence in their negotiation during the transition period and must "refrain, during the transition period, from any action... which is likely to be prejudicial" to the interests of the EU (Article 129(3) and (6)).

8. Demands Payment of a sum to be decided by the EU

Possibly a 39bn payment to the EU according to HM Treasury but as that amount can't anticipate EU fines and contingent liabilities it's just a minimum figure (Articles 138-144, and 152-155).

9. Replaces one Commission with another

A new body is established with 'powers equivalent to those of the European Commission' (Article 159).

10. Prevents independent arbitration

The UK is expressly denied the right to take any dispute about the Treaty to the international courts and must accept the exclusive jurisdiction of the Arbitration Panel (half of whom are appointed by the EU) and, via it, judgments of the ECJ (Articles 168, 174).

11. Grants EU officials immunity

The EU and its employees are to be immune to UK regulations, criminal law and exempt from tax (Articles 101, 104, and 106-116).

12. Imposes a gagging order on the UK

The UK must keep all EU information confidential but the EU can use UK information as it sees fit. (Articles 74 and 105).

13. Leaves the UK with EIB risks but no profits

We abandon rights to not only past and future profits made from our investment in the EIB, but also our share of assets of the EIB and yet remain liable for contingent liabilities of up to 500bn euros of guarantees given to the EIB via the EU budget (Articles 143, 147, 150).

14. Imposes EU public procurement rules

EU public procurement rules continue at least during the transition period (Articles 75-78 and 127).

15. Makes the UK a bystander in laws that govern it

The UK is permitted to send a civil servant to Brussels to observe the EU passing laws designed to disadvantage our economy during the transition (which might last many years) (Article 34). For example, the EU is discussing regulating London's huge Foreign Exchange Markets and also imposing a financial transaction tax that would be collected at our expense by HMRC but sent to foreign governments.

Benjamin Wrench Barrister

Brussels, 17th October 2019

The Loopholes of the Surrender Act
Statement from Barry Legg, Chairman of The Bruges ...
 

Comments 25

Guest - Geoffrey Bastin on Thursday, 17 October 2019 21:59

Boris Johnson has done what he was employed to do and that is save the Tory Party. His so-called agreement is nothing of the sort but is a replacement treaty that ties us to the EU forevermore.
It is a deceptive piece of dishonesty and continues in the same vein as every other Tory party Leader since Heath with the exception of Margaret Thatcher.
If parliament approves this "deal" in two days time it will be BRINO and the Remainers will have won.
Mind you the quest for a free and self determining country will go one until we achieve the objective.

Boris Johnson has done what he was employed to do and that is save the Tory Party. His so-called agreement is nothing of the sort but is a replacement treaty that ties us to the EU forevermore. It is a deceptive piece of dishonesty and continues in the same vein as every other Tory party Leader since Heath with the exception of Margaret Thatcher. If parliament approves this "deal" in two days time it will be BRINO and the Remainers will have won. Mind you the quest for a free and self determining country will go one until we achieve the objective.
Guest - StolenFrom on Thursday, 17 October 2019 22:08

Shocking that the ERG would even consider this treaty.
It was obvious that the Conservatives couldn't be trusted with Brexit.

Shocking that the ERG would even consider this treaty. It was obvious that the Conservatives couldn't be trusted with Brexit.
Guest - Mike on Friday, 18 October 2019 06:46

The Bruge Group is going to need to do a much better and faster job publicising this analysis if they hope to influence the result of the vote on Saturday. Get your skates on!

The Bruge Group is going to need to do a much better and faster job publicising this analysis if they hope to influence the result of the vote on Saturday. Get your skates on!
Guest - Jack Rank (website) on Friday, 01 November 2019 21:50

Conveniently left out the date of Dec 2020

Conveniently left out the date of Dec 2020
Guest - Richard Evans on Friday, 18 October 2019 06:57

We should do now what we always should have done, thank the EU for its time and leave ASAP without any payments. Any money due can be determined in court, I think the EU will find we owe them diddly squat, especially when we provide evidence that they have been colluding with Remoan MPs to prevent our leaving through the legal system and Parliament.

We should do now what we always should have done, thank the EU for its time and leave ASAP without any payments. Any money due can be determined in court, I think the EU will find we owe them diddly squat, especially when we provide evidence that they have been colluding with Remoan MPs to prevent our leaving through the legal system and Parliament.
Guest - MO'B on Friday, 18 October 2019 07:41

Section 99 of the revised Political Declaration, on the agreement to cooperate on defence and security after Brexit:

"Such an agreement would be without prejudice to the decision-making autonomy of the Union or the sovereignty of the United Kingdom."

Why did you overlook the essential latter part of the text of this section? It completely contradicts the point you make about not affording the UK decision-making reciprocity, on the simple basis that sovereignty guarantees complete independence and self-government.

Furthermore, section 4 of the Political Declaration states:

"It must also ensure the sovereignty of the United Kingdom and the protection of its internal market, while respecting the result of the 2016 referendum."

This naturally means that any aspect of the Withdrawal Agreement which impedes British sovereignty, our internal market or the diligent application of the referendum result cannot be legally enforced, on the ground that to do so would comprise breaches of its primary terms.

Section 99 of the revised Political Declaration, on the agreement to cooperate on defence and security after Brexit: "Such an agreement would be without prejudice to the decision-making autonomy of the Union or the sovereignty of the United Kingdom." Why did you overlook the essential latter part of the text of this section? It completely contradicts the point you make about not affording the UK decision-making reciprocity, on the simple basis that sovereignty guarantees complete independence and self-government. Furthermore, section 4 of the Political Declaration states: "It must also ensure the sovereignty of the United Kingdom and the protection of its internal market, while respecting the result of the 2016 referendum." This naturally means that any aspect of the Withdrawal Agreement which impedes British sovereignty, our internal market or the diligent application of the referendum result cannot be legally enforced, on the ground that to do so would comprise breaches of its primary terms.
Guest - Rich on Friday, 18 October 2019 13:12

UK promises to remain the "land bridge" for Southern Irish imports and exports, apparently at no cost. So UK roads, motorways, ports and airports will continue to be clogged by this uncontrolled Southern Irish traffic:

"AFFIRMING the commitment of the United Kingdom to facilitate the efficient and timely transit through its territory of goods moving from Ireland to another Member State or to a third country, and vice versa,"

UK promises to remain the "land bridge" for Southern Irish imports and exports, apparently at no cost. So UK roads, motorways, ports and airports will continue to be clogged by this uncontrolled Southern Irish traffic: [i]"AFFIRMING the commitment of the United Kingdom to facilitate the efficient and timely transit through its territory of goods moving from Ireland to another Member State or to a third country, and vice versa,"[/i]
Guest - Will Podmore on Friday, 18 October 2019 13:40

Splendid article, thank you the Bruges Group.
The EU is still trying to bully us into staying in. It wants to keep us paying it £1 billion a month, to split Northern Ireland from the rest of the UK, to enforce a deal that would keep us in the EU but without a say in policy-making. France, Spain, the Netherlands, Belgium and Denmark are all demanding access to our fishing grounds as a condition for our getting a free trade deal with the EU.
Under the proposed deal, we would still be paying the EU £39 billion for the privilege of leaving. We would still be unable to control our borders.
The deal would split the country until at least 2026, more likely until 2030. We would not leave the EU Single Market and Customs Union until at least 1 January 2022, more likely until 2024. Northern Ireland would then stay in the Single Market for four more years. The UK would enter a ‘Transition Period’ on 1 November 2019 – under EU laws but with no say over them - until at least 1 January 2022, and most probably until at least 1 January 2024. At the end of this Transition Period Northern Ireland would still not have left the EU.
If Johnson’s deal is much the same as May’s toxic deal, which looks increasingly likely, we should reject it as we rejected her deal. We should denounce it as a ‘Surrender Deal’. It is not a deal – it’s a trap.
This deal is not what we voted for. We voted as one country to leave the EU, in a majority democratic decision. We voted to control our laws, money and borders, we voted for independence, we voted for democracy.
Those who voted to leave, the majority, must act to ensure that we make the clean break from the EU that we voted for.

Splendid article, thank you the Bruges Group. The EU is still trying to bully us into staying in. It wants to keep us paying it £1 billion a month, to split Northern Ireland from the rest of the UK, to enforce a deal that would keep us in the EU but without a say in policy-making. France, Spain, the Netherlands, Belgium and Denmark are all demanding access to our fishing grounds as a condition for our getting a free trade deal with the EU. Under the proposed deal, we would still be paying the EU £39 billion for the privilege of leaving. We would still be unable to control our borders. The deal would split the country until at least 2026, more likely until 2030. We would not leave the EU Single Market and Customs Union until at least 1 January 2022, more likely until 2024. Northern Ireland would then stay in the Single Market for four more years. The UK would enter a ‘Transition Period’ on 1 November 2019 – under EU laws but with no say over them - until at least 1 January 2022, and most probably until at least 1 January 2024. At the end of this Transition Period Northern Ireland would still not have left the EU. If Johnson’s deal is much the same as May’s toxic deal, which looks increasingly likely, we should reject it as we rejected her deal. We should denounce it as a ‘Surrender Deal’. It is not a deal – it’s a trap. This deal is not what we voted for. We voted as one country to leave the EU, in a majority democratic decision. We voted to control our laws, money and borders, we voted for independence, we voted for democracy. Those who voted to leave, the majority, must act to ensure that we make the clean break from the EU that we voted for.
Guest - Itellyounothing on Friday, 18 October 2019 14:12

Who makes the final judgement on those issues? ECJ or a joint council or a neutral 3td party?

Who makes the final judgement on those issues? ECJ or a joint council or a neutral 3td party?
Guest - Jerry on Friday, 18 October 2019 15:10

So, how can the ERG guys support this? There must be counter-arguments in favor??

So, how can the ERG guys support this? There must be counter-arguments in favor??
Guest - Donald on Friday, 18 October 2019 17:13

Surely best for all of us just to revoke the entire shambles.

Surely best for all of us just to revoke the entire shambles.
Guest - Joan Sanderson on Friday, 18 October 2019 19:36

This is not leaving the E U

This is not leaving the E U
Guest - Steve Howell on Saturday, 19 October 2019 09:32

The conservatives have chosen Party over the people. With just hours left, I really hope the ERG chuck this Surrender Bill Mark 2 right where it belongs; the bin.

The conservatives have chosen Party over the people. With just hours left, I really hope the ERG chuck this Surrender Bill Mark 2 right where it belongs; the bin.
Guest - skipper on Sunday, 20 October 2019 14:01

Leave with no deal!
Dealings comes after, as a free, independent, sovereign country to be proud of!

Leave with no deal! Dealings comes after, as a free, independent, sovereign country to be proud of!
Guest - Adam Hiley on Sunday, 20 October 2019 16:56

Wake up now and remove the whole current Remoaner ridden Parliament and bar them from standing again shut down Blair's American sounding supreme Court and the Remoaner run BBC and rid Ourselves from the 3 main Parties eutruth.org.uk

Wake up now and remove the whole current Remoaner ridden Parliament and bar them from standing again shut down Blair's American sounding supreme Court and the Remoaner run BBC and rid Ourselves from the 3 main Parties eutruth.org.uk
Guest - Adam Hiley on Sunday, 20 October 2019 17:02

get rid of the Lib-Lab-Con-SNP-Green greens now

get rid of the Lib-Lab-Con-SNP-Green greens now
Guest - Leavebill on Sunday, 20 October 2019 23:13

Revoke would be a far better option at the moment. This “deal” is one we cannot escape. Revocation would enrage leavers and lead to a Brexit Party government and a new invoking of article 50. This would deliver a real exit from the control of the rotten EU.

Revoke would be a far better option at the moment. This “deal” is one we cannot escape. Revocation would enrage leavers and lead to a Brexit Party government and a new invoking of article 50. This would deliver a real exit from the control of the rotten EU.
Guest - Andrew Oldham on Monday, 21 October 2019 05:17

Boris the betrayer. Conservatives can’t be trusted on Brexit and the public are waking up to the fact what he has done.
The Conservative Party has sealed its fate. Boris stands there and lies and lies again.
Brexiteers are not stupid. Party before country that’s always the political class way of doing things well not anymore. ERG you have betrayed the people that put so much trust in you. We will fight every step to clear Parliament of these traitors once and for all. To kick the DUP was your big mistake they fought and died for this country too. Hang your heads in shame.

Boris the betrayer. Conservatives can’t be trusted on Brexit and the public are waking up to the fact what he has done. The Conservative Party has sealed its fate. Boris stands there and lies and lies again. Brexiteers are not stupid. Party before country that’s always the political class way of doing things well not anymore. ERG you have betrayed the people that put so much trust in you. We will fight every step to clear Parliament of these traitors once and for all. To kick the DUP was your big mistake they fought and died for this country too. Hang your heads in shame.
Guest - Maureen RichardsMBE on Saturday, 26 October 2019 09:39

We can only hope that Boris and the cabinet have a plan whereby on the 31st October we Leave With No Deal!
It must be or this will be the End Of The Conservative Party you will not stand a dog in Hells chance of winning an Election. This is our Preferred Wish The Only other alternative would be to join together with The Brexit Party then you would win a majority. You won’t take Any Notice Of Us Mere Mortals So I don’t know why we bother to email you At No 10 or anywhere else??? We must just hope that Sanity Prevails. We are only trying so hard because o our Children and Grandchildren’s Future Hopefully If you don’t get us out we shall be Dead And Gone Before it gets to Bad to live here in Our Once Beautiful Country England. ????????????????

We can only hope that Boris and the cabinet have a plan whereby on the 31st October we Leave With No Deal! It must be or this will be the End Of The Conservative Party you will not stand a dog in Hells chance of winning an Election. This is our Preferred Wish The Only other alternative would be to join together with The Brexit Party then you would win a majority. You won’t take Any Notice Of Us Mere Mortals So I don’t know why we bother to email you At No 10 or anywhere else??? We must just hope that Sanity Prevails. We are only trying so hard because o our Children and Grandchildren’s Future Hopefully If you don’t get us out we shall be Dead And Gone Before it gets to Bad to live here in Our Once Beautiful Country England. ????????????????
Guest - Doug Lumley on Friday, 01 November 2019 11:44

If you're trying to communicate sensibly with a representative proportion of the 17,4 M this is exactly the type of document that I delete before moving on (or at best file for possible future use {which seldom happens}): The jargon, the use of uncommon abbreviations and the assumption that we are all au fait with the workings of your world. Why not assume that we are knuckle-dragging Neanderthals and make your information intelligible.

If you're trying to communicate sensibly with a representative proportion of the 17,4 M this is exactly the type of document that I delete before moving on (or at best file for possible future use {which seldom happens}): The jargon, the use of uncommon abbreviations and the assumption that we are all au fait with the workings of your world. Why not assume that we are knuckle-dragging Neanderthals and make your information intelligible.
Guest - christine breeds on Friday, 01 November 2019 13:10

after what I have just read borris has already sighed us away in 2 days

after what I have just read borris has already sighed us away in 2 days
Guest - Tim on Saturday, 02 November 2019 13:47

Thank you for this authoritative explanation of Boris's rehashed May's deal.

There is a way out vote in the Brexit Party. Will trade be at risk ? Very unlikely as the EU trade and sell far more to us than we them. Let the EU commissioners tell the masses in Europe why one of their largest export markets is suffering because they - the EU deal makers - are incompetent. The UK has always wanted just a trade deal so cannot be held responsible ( present EU remainer MP's ignored ).

Thank you for this authoritative explanation of Boris's rehashed May's deal. There is a way out vote in the Brexit Party. Will trade be at risk ? Very unlikely as the EU trade and sell far more to us than we them. Let the EU commissioners tell the masses in Europe why one of their largest export markets is suffering because they - the EU deal makers - are incompetent. The UK has always wanted just a trade deal so cannot be held responsible ( present EU remainer MP's ignored ).
Guest - Edward Penfold on Saturday, 02 November 2019 18:17

Thank goodness I found your website, will pass on the details to as many friends as possible, the more people that know of your website, the better chance we have of a proper brexit ,as the current deal on offer not only is an affront to common decency but a complete travesty. How Johnson has the
gall to present this as a great deal is mind-boggling. This amounts to a deliberate sell-out of our sovereignty, even though I understand that according to our constitution it is illegal to part with our sovereignty without a proper plebiscite.

Thank goodness I found your website, will pass on the details to as many friends as possible, the more people that know of your website, the better chance we have of a proper brexit ,as the current deal on offer not only is an affront to common decency but a complete travesty. How Johnson has the gall to present this as a great deal is mind-boggling. This amounts to a deliberate sell-out of our sovereignty, even though I understand that according to our constitution it is illegal to part with our sovereignty without a proper plebiscite.
Guest - Richard Prior (website) on Sunday, 03 November 2019 07:02

The Politicians of Britain are insane.

From the start it was total madness to link the unconditional Exit from the EU with a complex negotiation of ANY future relationship with the EU.

These 2 issues should have been separated.
1. Unconditional Exit
2. Long term re-negotiation of future relationship with EU (until its destruction) and then with individual European Countries.

For my sins, I have advised 2 PMs in time of Crisis, 27 UK Government Departments as well as Governments of China, Turkey, Hungary, Belgium, Sweden, Russia +++

Boris Johnson is less transparent than T. May if that is possible. Britain rejects him.

[b]The Politicians of Britain are insane.[/b] From the start it was total madness to link the unconditional Exit from the EU with a complex negotiation of ANY future relationship with the EU. These 2 issues should have been separated. 1. Unconditional Exit 2. Long term re-negotiation of future relationship with EU (until its destruction) and then with individual European Countries. For my sins, I have advised 2 PMs in time of Crisis, 27 UK Government Departments as well as Governments of China, Turkey, Hungary, Belgium, Sweden, Russia +++ Boris Johnson is less transparent than T. May if that is possible. Britain rejects him.
Guest - Andrew Bates (website) on Monday, 04 November 2019 02:06

"Introduction

So far as we are aware the only material changes in the Withdrawal Agreement (Treaty) are to the NI Protocol, which means that the critical ECJ oversight and Art 184 link to the Political Declaration remain. I am told by UKREP that there are two changes to other Articles in the Treaty but they were unable to tell us which ones."

Can the analysis be updated now to address the bits you know about now, please.

That would be super useful for sharing it.

"Introduction So far as we are aware the only material changes in the Withdrawal Agreement (Treaty) are to the NI Protocol, which means that the critical ECJ oversight and Art 184 link to the Political Declaration remain. I am told by UKREP that there are two changes to other Articles in the Treaty but they were unable to tell us which ones." Can the analysis be updated now to address the bits you know about now, please. That would be super useful for sharing it.
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