THE GOVERNMENT PROPOSALS FOR THE VOTE ON 11 DECEMBER
Two documents will be presented to parliament for approval on 11 December. The Draft Agreement published on 14 November and Political Declaration published on 25 November. The Agreement covers the immediate period to December 2020. It will be legally binding. It covers citizen rights, the maintenance of current conventions for security, crime, aviation and joint research programmes to 2021 and, in much more detail, Ireland. The Political Declaration is an outline understanding between the UK and EU as to what might be agreed thereafter. It is not legally binding (parts are very vague) but provides the agreed agenda for determining future relations.
1. A document designed to confuse
It is almost 600 pages long: many clauses refer to clauses in annexes or in the EU Constitutional Treaty TFEU (without explanation). The most important section is the Protocol on Ireland (p302).
2. A Single Customs Territory for Ireland – with an objective to include Britain
The North will be fully part of the EU Single Market and all rules on state aid and competition will apply. A ‘common objective’ is set for the whole of the UK and the EU to establish a future relationship built upon such a ‘Single Customs Territory’ – ‘the backstop to the backstop’.
p. 303-4: ‘This Protocol is based on the third scenario of maintaining full alignment with those rules of the Union's internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement, to apply unless and until an alternative arrangement implementing another scenario is agreed.’
p. 303: the Union and the United Kingdom's ‘common objective of a close future relationship, which will establish ambitious customs arrangements that build on the single customs territory provided for in this Protocol, in full respect of their respective legal orders’.
3. Time Periods
A transition period is agreed (covering Britain as well as NI) by which all existing EU legislation and payments will continue in full force till 31 December 2020. The jurisdiction of the European Court will continue to apply for all issues of dispute, including those concerning state aid, for four years thereafter if lodged prior to that date and for eight years on issues relating to financial contributions and EU programmes. Any disputes over the terms of the Agreement will be moderated by panels that include the EU/European Court – and will give the EU power to block future changes. Article 132: the transition period may be extended subsequently, without limit, by mutual agreement.
4. Summary and Comment
The document is partly an exercise in kicking the can down the road. But it:
a) Keeps the whole of the UK within EU rules until December 2020 – though without membership or rights to participate in decision making
b) Sets up a Customs Territory for Ireland that is fully subject to all EU legislation in the long run
c) Specifies an objective that this be extended to Britain through subsequent negotiation
d) meantime specifies that there be no border between North and South and that in terms of the border with Britain such physical checks only be avoided as far as possible
d) Gives the EU and the EU Court of Justice joint powers with the UK over any changes in these proposals
e) Enables the transition period (ie within continued EU legislation – though without participation in any future decision making) to be continued indefinitely by mutual consent
f) The earlier Articles deal principally with the maintenance of citizen rights of those settled in either jurisdiction and cooperation on crime, transport, Euratom, medical products up to the end of the transition period.
In terms of the Labour Party’s programmes for economic and industrial regeneration it would preclude ANY implementation that is in conflict with EU state aid and competition rules till December 2020. It would do so for NI in the long run and it sets up a presumption, based on the Protocol with Ireland/NI, that the NI arrangement be extended to Britain from 2021 (otherwise a ‘hard border’ would be created between NI and Britain). Britain would be unable to conclude trade treaties until 2021 (and be subject to those negotiated by the EU such as CETA) and still be thereafter if the Single Customs Territory was extended from NI to Britain.