Samizdata

The good folk at Lawyers for Britain, (all donations welcome) led by Martin Howe QC, a nephew of Sir Geoffrey but we probably all have embarrassing uncles somewhere, have done a thorough preliminary analysis of Mrs May (the FFC)’s recent ‘Chequers’ Brexit proposals, the Chequers proposals are here. My summary (not Lawyers for Britain’s) is that, like Austria relegated to becoming the ‘Ostmark’ in 1938 in the Anschluss, it is more like becoming a Nazgûl in thrall to the Dark Lord than any form of independence. At least the Anschluss of 1938 was a blatant take-over, when this is meant to be independence.

Here are some key points, square brackets my addition:

the UK would be obliged to interpret these rules [for goods and agri-foods] in accordance with rulings of the ECJ under a system which would (whether directly or indirectly) bind UK courts to follow ECJ rulings. In areas where rules relating to goods are applied in a discretionary way under the control of EU regulatory bodies, it is inevitable that the application of the rules in the UK and UK regulatory bodies would continue to be bound by the decisions of EU bodies in the same way as if the UK were still a member state but without a vote or voice within those institutions. This would amount to a permanent vassal relationship in the area covered by the ‘common’ rulebook.

On changing our laws post-independence:

There is no indication in the text of the statement that the UK would have any ability to change any of the existing body of EU laws, however damaging they may be or become in the future – for example where restrictive EU laws block the development or deployment of new technology, such as in the biotech area where the UK has a huge opportunity to develop its leading industry and to sell its expertise and products around the world. In order supposedly to benefit the 12% of our economy which consists of exports to the EU, we would accept a binding obligation to freeze the laws which cover 100% of our economy consisting of domestic production and also imports from third countries

And this means of course, implementing EU law or face the consequences. “Fax Democracy” as it is called, yet so in effect independence is being transformed into loss of (pretty worthless) EU voting rights.

We also could not offer to recognise other countries’ systems for, e.g. food or drug safety, if importing from them, we’d have to apply EU rules to such products.

And of course, Mrs May commits us to maintain EU regulation, regardless of absurdity or impact, and perhaps letting the ECJ have the final say in UK law, a so-called ‘red line’.

Of even more concern is that the UK would agree “to maintain high regulatory standards for the environment, climate change, social and employment, and consumer protection – meaning we would not let standards fall below the current levels.” (Emphasis added). The problem with this is not a general requirement to maintain high standards, which we would want to do anyway, but the commitment not to let standards in these areas “fall below” current levels. Any changes to our rules in these areas which improve the competitiveness of UK industry would almost certainly be interpreted by the EU as allowing our standards to “fall below” current standards. This commitment is therefore an extremely dangerous one to undertake, particularly if it were linked to a binding enforcement mechanism and even more so if that binding mechanism ultimately becomes the ECJ

And for interpreting agreements, Mrs May puts us on a par with Moldova (but they generally have better wine).

Para 4(c): “consistent interpretation and application of UK-EU agreements” – putting the UK on a par with Moldova
12. This paragraph first states that the interpretation and application of UK- EU agreements would be done “in the UK by UK courts, and in the EU by EU courts.” This is what one would expect with any treaty arrangement.

But this comes with a grave note of caution:

13. However, it is important that this process should be mutually balanced (i.e that the ECJ and Member State courts should pay just as much attention to judgments of UK courts as vice versa), and absolutely essential that it be non-binding. Para 4(c) indicates that “due regard” will be paid to EU case law in “common rulebook” areas. This lacks mutuality – there is no suggestion that EU courts should pay “due regard” to UK courts, immediately unbalancing the relationship and placing UK courts in an inferior position.

Note that I am only summarising this piece, but it does look as if the Chequers document is either deluded or dishonest as to the extent to which the UK will have independence under this deal, which is, imposing on an independent country, a subordination to a foreign bureaucracy, without any mandate for taking such a step whatsoever. There is no mandate for any deal with the EU to make the UK subordinate to it, there is only a mandate for independence from the EU.

And finally, on the FCA ‘Facilitated Customs Arrangement’ for UK-EU trade (‘FCA’ – pronounced ‘FuCA’, rhymes with ‘Theresa’).

Para 4(d): “Facilitated Customs Arrangement”
22. This paragraph is very difficult to understand in the absence of any detail. However, the first and most obvious and indeed important point is that the attempted introduction of the “FCA” would cause significant delay before the UK can leave the EU customs union and choose to set its own tariffs, whether by unilaterally changing them or abolishing them against free trade partners. We are now already over two years after the referendum. It beggars belief that it should be contemplated that administrative issues about customs processes could be allowed to dictate the whole trading future of the UK by preventing us from implementing tariff changes even after the end of the implementation period (31 Dec 2020 – 41⁄2 years after the referendum). Yet this seems to be the message of this paragraph. This would be severely damaging to the political prospects of the government and of the Conservative Party, since it would remove the chance of giving tangible benefits of Brexit before the next general election to low income families by removing or lowering tariffs on goods, particularly those where the UK has no or limited producer interests to protect.

Quite.