7 December 2018

The EU will not accept a deal without the backstop

“We should go back to Brussels and say, yes, we want a deal if we can get one… but we must be clear that we will not accept the backstop…The question of the Irish border is for the future partnership, not the withdrawal agreement.” (Boris Johnson MP, 4 December)

  • Reality Check: At this stage in the negotiations, it is implausible that the EU will accept any Withdrawal Agreement that does not contain a backstop. Rejecting the backstop means No Deal.


Labour’s customs union policy would not eliminate the need for a backstop

 “A new, comprehensive customs union with the EU…would remove the threat of different parts of the UK being subject to separate regulations.” (Labour leader Jeremy Corbyn, 6 December)

  • Reality Check: A permanent customs union, however comprehensive, would not eliminate the need for regulatory checks; it would therefore not remove the need for the backstop.


The backstop does not tie the UK to the single market

“The backstop ties the UK to the customs union and single market rules with no voice.” (Dominic Raab MP, 22  November)

  • Reality Check: Under the backstop, the UK would be out of the single market for services and capital, and would not be subject to free movement of people. The only areas where the UK would be “tied” to the single market are goods regulations in Northern Ireland, and state aid and competition law. Alignment to goods regulations by the rest of the UK would be voluntary. The UK would be able to resist new goods regulations applying to Northern Ireland even during the backstop.


No Deal means no transition period

“If we need to leave with no deal and negotiate a free trade agreement during the transition period, so be it.” (David Davis MP, 19 November)

  • Reality Check: The agreement on the transition period is part of the Withdrawal Agreement. If there is no deal, there is no transition period.


The transition period is finite

“[What if] the EU goes as slowly on the next phase of the negotiations as it did on the last lot, and drags us into permanent transition at enormous cost?” (John Redwood MP, 26 November)

  • Reality Check: The EU cannot “drag” the UK into “permanent” transition. Article 3 of the Withdrawal Agreement makes clear that a transition extension would be at the request of the UK, not the EU. The transition also cannot be permanent – the latest it can be extended to is 31 December 2022, as per Article 132.


The ‘independence’ of the UK’s trade policy is likely to be constrained

“Once we leave the EU, we can and we will strike ambitious trade deals… We will forge new and ambitious economic partnerships, and open up new markets for our goods and services in the fastest growing economies around the world.” (Prime Minister Theresa May, 2 December)

  • Reality Check: The UK will be able to sign trade deals after March 2019, but it will not be able to implement them during the transition period. UK trade policy would also be considerably constrained if – as seems likely – it entered the backstop. In practice, the backstop’s UK-EU customs territory would mean the UK could not enact comprehensive trade deals on goods separate to those negotiated by the EU – though it would be free to agree deals on services.


The UK will not be a ‘rule-taker’ on social, environmental and employment policy

“The UK will continue to be bound by EU laws in vital areas such as social policy, environmental policy and employment policy, i.e. will obey EU laws, but have no further influence over how they are drafted. We will thus become a ‘rule taker’ and will have surrendered our sovereignty in these critical areas.”  (European Research Group briefing, 18 November)

  • Reality Check: In social, environmental and employment policy, the UK will only be a ‘rule taker’ during the transition. In the backstop, the UK would be required to maintain the ‘floor’ of existing EU standards. This is not ‘rule-taking’ as the UK would not have to implement future EU laws in these areas.
  • There are minor exceptions to this – for example, Northern Ireland would need to align with future EU directives underpinning the Single Electricity Market such as those covering industrial emissions and greenhouse gas emission allowance schemes.


The £39 billion ‘divorce bill’ is not a down payment for a future trade agreement 

“The proposed agreement will see the UK hand over £39billion to the EU for little or nothing in return.” (Jacob Rees-Mogg MP, 14 November)

  • Reality Check: The £39 billion financial settlement is not something paid to the EU “in return” for a trade deal, and never has been. It is a negotiated settlement of the financial obligations to the EU, including the UK’s continued participation in the single market and EU agencies during the transition period. The National Audit Office estimates that at least £16 billion covers the UK’s contributions for the duration of the transition.


The deal ends Free Movement but protects the Common Travel Area

“[This deal] does not end free movement. A member of the European Union can go into Dublin….they can go into Northern Ireland and take the ferry across to England or Scotland…that’s not taking control of our borders” (Anna Soubry MP, 22 November).

  • Reality Check: This is a conflation of two separate things. Both the UK and the EU have committed to maintaining the Common Travel Area between Ireland, the UK and the Isle of Man. Ireland will remain outside of the EU’s Schengen Zone. This is a completely separate issue from ending Free Movement of People – which provides legal rights to reside, work and study anywhere in the EU. Depending on the UK’s future immigration policy, anyone staying in the UK without the right to do so would be committing an immigration offence. Just as now an Australian or Israeli national entering the UK for tourism has no inherent right to remain indefinitely to work.


The UK has not “sold out” the fishing industry

“Paragraph 75 of the political declaration agreed today states: “Within the context of the overall economic partnership the Parties should establish a new fisheries agreement on, inter alia, access to waters and quota shares.” There we have it: Scotland’s fishing community is once again a bargaining chip used by a Tory Government in Brussels.” (SNP Westminster leader Ian Blackford, 22 November)

  • Reality Check: The commitment to negotiate fishing rights “within the context of” the future economic partnership falls short of the “no fish, no deal” for which some EU member states were reportedly pushing. The UK has not “sold out” fishing rights but will remain under pressure to do so.


The French threat to veto UK exit from the backstop over fishing rights is self-defeating

“The EU27 has asserted its interests…on fishing…This is part of our lines, in a sense, for [determining] the future relationship. Which is leverage. Because it is in our mutual interest to have a future deal, and it is not my understanding that it is Theresa May’s desire, or [that of] those who support her, to stay long-term in a customs union.” (French President Emmanuel Macron, 25 November)

  • Reality Check: Macron’s comments have been interpreted in the UK as a French threat to force the UK into the backstop unless the UK grants access to its fishing waters. But the UK can avoid this pressure by electing to go into the backstop. Since fishing is explicitly carved out of the UK-EU customs union, European states would want to reach rapid agreement on fishing to secure some access.


The UK did not “capitulate” to Spain over Gibraltar

“With Brexit we all lose, but on Gibraltar, Spain wins.” (Spanish Prime Minister Pedro Sanchez, 26 November)

  • Reality Check: What Spain actually “won” over Gibraltar was a coup de theatre. A letter from the presidents of the European Commission and European Council merely re-stated an earlier commitment that a future UK-EU relationship would not *automatically* apply to Gibraltar without Spain’s approval. A letter from Prime Minister Theresa May said nothing of substance. Given that every EU member state’s approval is likely to be needed for a future agreement the row last month was purely confected, designed to allow Sanchez to claim a domestic political victory.
  • Chief Minister of Gibraltar, Fabian Picardo, has said the deal protects Gibraltar’s interests.


The UK has committed not to reduce existing standards on social, employment and environmental protections

“[The deal would allow] this Conservative Government to use Brexit as an excuse for a race to the bottom in protections, to rip up rights at work.” (Labour leader Jeremy Corbyn, 19 November)

  • Reality Check: The Withdrawal Agreement commits the UK to maintain existing EU social and environmental standards, including on workers’ rights. It is true that the UK has flexibility to uphold these standards in a different way, but current EU standards would form a ‘floor’ of protections, below which the UK cannot fall. Moreover, nothing would prevent a UK government from voluntarily increasing protections in line with, or indeed beyond, the EU. The UK already gold-plates many EU social standards.


The European Court of Justice’s role in supervising the Withdrawal Agreement is limited

“The Court [of Justice] will … serve as the enforcer of the Withdrawal Agreement – meaning that the EU can continue to impose its will on us and the jurisdiction of the Court continues to apply in this country.” (Priti Patel MP, 16 November)

  • Reality Check: The European Court of Justice will not “enforce” the Withdrawal Agreement. Disputes will initially be referred to a Joint Committee where the UK has a veto, then to an arbitration panel. The Court will only have the final say if the dispute relates to the interpretation of EU law. This is arguably inescapable in any arbitration arrangement, given the EU’s strict defence of its legal autonomy.


However, the European Court of Justice will likely have an indirect role in the UK in the future

“[This deal] honours the vote of the British people by taking back control of our borders, our laws and our money…. The draft text ends the jurisdiction of the European Court of Justice in the UK.” (Theresa May, 22 November)

  • Reality Check: During the transition, the European Court of Justice continues to hold direct jurisdiction in the UK. It will maintain a role for a time-limited period thereafter enforcing citizens’ rights. In the backstop, the direct jurisdiction of the Court of Justice – and other EU institutions – will be largely ended, but the court retains a direct role in Northern Ireland in areas where it applies EU law.


The deal respects the UK’s autonomy over security and defence

“The ‘deal’ surrenders British national security by subordinating UK defence forces to military EU control and compromising UK intelligence capabilities.” (Richard Dearlove [ex-MI6 chief] and Major General Julian Thompson, 29 November)

  • Reality Check: The UK will be bound by the EU’s foreign and defence policies during the transition, but the UK can opt-out of certain measures “for vital and stated reasons of national policy.”
  • On the future security relationship, full agreement has not yet been reached. The Political Declaration states, however, that both parties “should preserve their respective strategic autonomy” and while the UK will have the opportunity to cooperate on security and defence, this will be done on a voluntary and case-by-case basis. The UK will not play a role in the decision-making process, but it will also not be obliged to take part when this would compromise its strategic objectives.


This deal does not close off Labour’s preferred policy of a permanent customs union

“What [this deal] does close off is a comprehensive customs union… the very thing which we think is really important” (Shadow Brexit Secretary Keir Starmer, 22 November 2018)

  • Reality Check: Labour’s preferred permanent customs union may differ from the Government’s stated objectives, but it is not “closed off” by this deal. A temporary customs union without a fixed end date is provided for in the backstop, and a permanent customs union could be negotiated – perhaps by a future Labour Government – as part of the future UK-EU relationship.


Achieving a detailed agreement on the future relationship before leaving has long been implausible

“[The Political Declaration] is essentially an agreement to have an agreement, and it is full of worryingly vague aspirations… That is pathetically weak.” (Liberal Democrat leader Vince Cable, 22 November 2018)

  • Reality Check: Achieving a full agreement on the future relationship was always highly unlikely within the two years under Article 50, as Cable himself acknowledged back in 2017, saying “there is no way a final trade deal with the EU will be agreed by March 2019”. The EU has also been very clear that Article 50 negotiations could not provide  a legal basis for the future relationship. Given this, a detailed, binding agreement on post-Brexit relations was not feasible at this stage. The Political Declaration’s ‘vagueness’ is an inevitable effect of the legal status of Article 50.


Any Brexit will end the UK’s vote and veto in the EU

“[This deal means we will] have given up our voice, our veto and our vote” (Sam Gyimah MP, 1 December)

  • Reality Check: Any deal that takes the UK out of the EU’s institutions – something inherent in any sort of Brexit – will mean the UK loses its vote and veto in the Council, its representation in the Commission, its judge on the European Court, and its MEPs. Britain’s voice in the European institutions will obviously therefore be weaker. This is not a consequence of this Brexit deal, but a direct result of Brexit itself.