The Government recently published a table, issued via a tweet from Theresa May, which compared the Brexit deal with some of the alternatives advanced by its opponents  – such as the ‘Canada Model,’ the ‘Norway Model,’ ‘No Deal,’ and remaining in the EU. The table, set out above, is clearly designed to buttress the Government’s argument that there is “no alternative” to the deal on the table. But how accurate are the Government’s claims?

One of the problems with the Government’s table is that it makes the same mistake as many of its critics, by failing to clearly distinguish between the state of affairs in the transition, the backstop, and the proposed future relationship. Instead, it simply refers to ‘the Brexit deal.’ In some areas, the distinction is academic – for example, both the backstop and the future relationship set out in the Political Declaration would see an end to free movement of people. In other areas, however, the difference between the backstop and the future relationship is important. This is particularly the case with regard to the jurisdiction of the European Court of Justice (ECJ), the question of whether the UK has an independent trade policy and future security cooperation.

An end to ECJ jurisdiction?

The Government claims that the deal would “end ECJ jurisdiction in the UK”. Under the backstop, there would indeed be no direct ECJ jurisdiction in Great Britain (except with regard to citizens’ rights, for a period of 8 years). However, there would be direct ECJ jurisdiction in Northern Ireland, in those areas where Northern Ireland aligns with EU rules under the backstop. These include the EU customs code, technical regulations, agriculture and the environment, the single electricity market and state aid.

Similarly, the Political Declaration on the future relationship commits the UK to “respect the integrity of the Union’s legal order, such as… the role of the Court of Justice of the European Union (CJEU) in the interpretation of Union law.” It suggests that the future role of the ECJ, albeit indirect, will depend on how closely the Government aligns with the EU – “the closer and deeper the partnership, the stronger the accompanying obligations.”

Overall, the deal limits the ECJ’s role after the end of the transition; the Government has certainly not signed up to direct ECJ jurisdiction over the UK in perpetuity. Some of the deal’s critics have taken issue with the ECJ’s role in overseeing the Withdrawal Agreement’s arbitration mechanism for dispute resolution. However, given the ECJ’s strict position that it alone is the sole arbiter of EU law, any arbitration mechanism which covers matters of EU law would require reference to the ECJ.

An independent trade policy?

The Government claims that the deal would allow the UK an “independent trade policy”. This claim (more than any other) is contingent on whether the state of affairs under discussion is the backstop, or the future UK-EU relationship. Under the backstop, the UK would technically have its own trade policy, but in practice this independence would be constrained. The UK would no longer be a full member of the Common Commercial Policy (CCP), which legally prevents EU members from independently signing trade deals with third countries. However, the UK would have to align with the EU’s Common Customs Tariff (CTT), some aspects of the CCP, and mirror the EU’s deals with third countries on goods. In practice, then, the UK would not have the ability to independently liberalise its tariffs to secure its own comprehensive trade deals covering goods, separate to those negotiated by the EU. It would, however, be able to operate an independent trade policy on services, investment, data, and labour mobility.

On the future relationship, the Political Declaration explicitly states that the UK will develop “an independent trade policy… beyond this economic partnership.” Yet it also refers to “ambitious customs arrangements” which “build and improve on the single customs territory provided for in the Withdrawal Agreement.” These two statements are in tension, as it is not yet clear how the future relationship can be reconciled with ending the backstop arrangements on customs in a way that includes the whole UK, including Northern Ireland. Therefore, the route to full independence on trade matters is also not yet clear.

Future Security co-operation is not yet guaranteed

The Government also claim that the deal guarantees cooperation with the EU on security. However, while the status quo will largely be preserved during the transition, the UK and the EU have only agreed a framework for security co-operation as far as the future relationship is concerned, and further negotiations will be needed on the detailed arrangements.

Conclusion

We concur with the Government’s assessment that the proposed deal will bring an end to free movement and see the UK leave the Common Fisheries Policy and Common Agricultural Policy after the end of the transition. The backstop would entail a much looser relationship with the EU than the status quo, as would the relationship proposed in the political declaration (See Open Europe’s new explainer on the Brexit deal here, with a helpful table on p6).

We also share the Government’s conclusion that there is no negotiated deal likely to be on offer which does not contain some form of backstop. Therefore, the only alternative Brexit to the backstop is No Deal.