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Draft Brexit Agreement - An Analysis

Draft Brexit Agreement - An Analysis

The Brexit draft agreement has been released, and we have trawled through the 585 pages of dense legal text to bring you the key points. Ultimately, despite securing Cabinet agreement, the parts of the text highlighted here are important as they suggest that the Prime Minister’s troubles are far from over. 

First of all, the text is keen to highlight the ‘good faith’ that exists between the UK and EU. The text argues that the UK and EU will, at every attempt, ‘arrive at mutually satisfactory’ resolutions binding the UK and EU into a good working relationship. This arguably frames the draft agreement, much to disgust of prominent Brexiters like Jacob Rees-Mogg and the European Research Group who have tonight been discussing options to remove the Prime Minister if they can’t remove the policy.

So what is so wrong with this agreement? The issues can be split into three areas:

  • Firstly, there is considerable ambiguity surrounding the Transition Period. The Transition Period is also subject to discussion in the agreement. According to part five of the agreement, the period can be extended. Before July 1, 2020, the period can be extended until ’31 December 20XX’ - essentially allowing the period to continue until the end of the century. Whilst this is merely a way of keeping all options on the table, ultimately is will fuel the rumours of the UK becoming locked into a transition indefinitely. A financial settlement would be required to do this, treating the UK as if it were a full member.  
  • Most importantly is Article 14(4) of the agreement. This defines the EU customs territory - effectively the details around the Northern Irish backstop agreement. The Article seems to say that the European Court of Justice and European Commission will have jurisdiction in the UK in respect to the EU customs code, technical regulations, VAT and excise, agriculture and the environment. More fundamental, the UK alone cannot leave the backstop. The UK will have to notify the EU of its intentions, and within 6 months a joint committee will meet. If both decide the backstop is no longer necessary, the backstop - Northern Irish access to the Customs Union, will cease to apply. What this mean effectively is that, the EU will have a veto. 
  • Finally, the issue over the ECJ and its jurisdiction is also of note. Whilst it looks to be a small point, the draft agreement highlights that any issue relating to EU law (of which there is a lot in the draft), will be a matter for the ECJ, and not referred to an arbitration panel. Whilst this may in practice relate to very specific issues that have little bearing on public life, the notion that the ECJ retains some jurisdiction maybe too much for the Brexiters in the Conservative party to stomach. 

Ultimately, what this Draft has done, and done well, is unite people.

However, for the Prime Minister, it has united the wrong people, namely her opposition.

Away from the specifics of the agreement, consensus from outside the Cabinet is clear. The DUP, SNP, ERG, and the Labour Party see this deal as the worst of all outcomes. It is neither entirely hard, nor entirely soft. Ultimately, whilst the specificity outlined above may not seem overly important, the threat of being locked into the EU as a rule taker may be the final straw for the ERG, the idea of backstop with EU veto may provide the opportunity to end the supply-and-confidence deal for the DUP, and the continued jurisdiction of the ECJ may provoke the Tory rebellion. Indeed, on the last point, it is being reported by Brexiteer MP Anne Marie Morris that the 48 letters needed to trigger a vote of no confidence have been submitted, though this is not confirmed. 

In the words of former Prime Minister Harold Wilson, a week is a long time in politics, and we still have two full days left. 

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