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Agreement raises serious questions

London, December 8th 2017

This morning the UK government and the European Commission announced that they have reached an agreement – to be put to the European Council next week – on a number of issues concerning the future partnership of the United Kingdom and the European Union. This agreement, however, raises some fundamental concerns that need to be addressed.

Responding to this morning’s developments and the details of the agreement, Director of the Better Off Out campaign Rory Broomfield said:

“While we are pleased that an agreement has been reached with the European Commission which allows talks to move on to trade issues, there are ongoing concerns that need to be addressed by the UK Government.”

The details of Better Off Out’s concerns regarding the agreement are as follows:

1. The role of the European Court of Justice and the ability for the UK to make its own laws.

Although press reports indicated that the agreement would allow for ECJ oversight for eight years post-2019 just in the area of citizens’ rights, the text of the agreement suggests otherwise.

Paragraphs 87-95 of the agreement (headlined ‘Other Separation issues’) illustrate a range of areas where the UK will be tied to Union law going forward post-withdrawal. This includes on Euratom-related (nuclear specific) issues, ongoing trade and police cooperation. There is a concern that, under this agreement, the UK would not be able to cease its participation in programmes such as the European Arrest Warrant, if it wished to.

This would mean the UK was not ‘Taking Back Control’.

2. The ability for the UK to diverge from EU law in a number of areas, if it wished.

Although Paragraph 49 right states that the UK government “remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border” and that it does say that “…In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the 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.”*
This suggests that the UK might be tied to EU laws made by the EU Commission in future years rather than being able to make its own as an independent and free nation. 

3. Budget

Paragraph 60 of the agreement states that “The UK will contribute its share of the financing of the budgetary commitments outstanding at 31 December 2020 (RAL).” If the agreement is ratified it would ensure that there’s a legal basis for the UK to pay this – where there is currently no obligation. As pointed out by Paul Walker in the Financial Times, Note 5 to the EU Accounts makes clear that a budgetary commitment is in principle made before the related legal commitment. As not all of the RAL is legally committed by the EU, and that as the EU treaties will cease to apply to the UK upon withdrawal, as outlined expressly in Article 50, the RAL would currently not be a legal requirement (without agreement) for the UK post-March 2019.

This is not the only issue regarding budgetary commitments within the provisions outlined in this agreement.

Paragraph 62 of the agreement states: “The UK will contribute its share of the financing of the Union’s liabilities incurred before 31 December 2020 except for the liabilities with corresponding assets and any assets and liabilities which are related to the operation of the budget and the Own Resources Decision.”

This, along with Paragraph 63 (The UK will remain liable for its share of the Union’s contingent liabilities as established at the date of withdrawal) and Paragraph 71 (Following withdrawal from the Union, the UK will continue to participate in the Union programmes financed by the MFF 2014-2020…), opens up huge liabilities post-withdrawal – and participation within programmes – that the UK Parliament might not wish to fund.

*In relation to North-South cooperation, we welcome Paragraph 50 which states that “In the absence of agreed solutions, as set out in the previous paragraph, the UnitedKingdom will ensure that no new regulatory barriers develop between NorthernIreland and the rest of the United Kingdom, unless, consistent with the 1998Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.”


For further comment, please contact Rory Broomfield on 07557772540 or rory@tfa.net

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