It is not often that Donald Trump and the EU Commission’s Secretary General, Martin Selmayr, agree. But on the Withdrawal Agreement, they are as one. It looked “like a great deal for the EU” to Trump, and Selmayr confirmed to the Passauer Neue Presse in December that the EU had “negotiated hard and achieved their aims.”
As my colleague Greg Hands pointed out yesterday, Selmayr went even further. “This exit from the EU,” he said, “doesn’t work” for the UK. These statements mirror Selmayr’s and his colleagues’ previous boasts that “losing Northern Ireland was the price the UK would pay” and that the UK “would have to swallow a link between access to products and fisheries in future agreements.”
This arrogant bragging is unsurprising to those long sceptical about the EU’s intentions, but it is still shocking. It is certainly a long way from the commitment – enshrined in Article 8 of the Treaty on European Union – to “develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness…characterised by close and peaceful relations based on cooperation.”
Selmayr may have taken the Treaty of Versailles as his model, but rather than trumpeting a one-sided victory in a local newspaper, he should have looked to the balanced, magnanimous Jay Treaty of 1794, following the American War of Independence. Chief Justice Jay and British Foreign Secretary Lord Grenville showed great foresight, recognising the need to move on from the war to “a firm, inviolable and universal Peace, and a true and sincere Friendship” between the USA and Great Britain with “a reciprocal and entirely perfect Liberty of Navigation and Commerce, between their respective People.”
The Treaty brought about a period of peaceful trade, alongside American traders gaining rights to operate even in the British West Indies. The parties agreed that disputes over the Canadian border and various wartime debts would be settled by the then almost unknown means of arbitration, setting an example which other nations would follow.
There should have been a lesson here on how an amicable, mutually-beneficial and long-lasting solution can be reached. The fact that such an approach has not been taken should be a wake-up call for MPs. We must be more robust if we are to have any hope of securing a good deal.
The Withdrawal Agreement cannot produce that deal. It categorically fails to deliver the referendum result. The “single customs territory” would lock the UK into the Customs Union in all but name. The UK would be tied to EU laws it was no longer involved in drafting. The European Court of Justice would retain the right to issue “binding rulings” on the interpretation of such law and sanction the UK for non-compliance.
The Backstop would keep Northern Ireland in the Customs Union and Single Market, creating a new political entity called “UK(NI)”. Northern Ireland’s elected politicians (unlike those in Dublin) would have no say over significant areas of this new entity’s policy; Northern Ireland’s constitutional status would have been fundamentally altered in breach of the Belfast Agreement’s Principle of Consent and the requirement to consult the NI Assembly. It even contravenes the Acts of Union 1800.
WTO terms avoid these failures. The WTO has already confirmed that “nothing in WTO rules…forces anyone to put up border posts”, so there would be no “hard” border. The ECJ’s jurisdiction would end. We would save £39 billion. The UK would make its own laws, to be interpreted in its own courts. It would take a fully independent seat on the WTO to work for free trade with allies across the world.
With time so short, we must prepare for this outcome as a matter of responsible policy. In parallel, it will jolt the EU into recognising the seriousness of our intent. It will remind them that our actions will have inevitable consequences for EU farmers and other exporters. It will thus catalyse the negotiation of a wide-ranging, zero-tariff Free Trade Agreement to the benefit of both sides.
If and when the Withdrawal Agreement is rejected, we should put the text of an FTA – already drafted – on the table for the EU in the event that we leave on WTO terms. Under Article XXIV of the WTO’s General Agreement on Tariffs and Trade, so long as the UK and EU agree an FTA and notify the WTO of a sufficiently detailed plan and schedule for the FTA as soon as possible, we could maintain our current zero-tariff, zero-quantitative restrictions arrangements.
An FTA clearly remains the optimal outcome. But having wasted so much time on the Withdrawal Agreement, our best chance of ever negotiating this is by preparing to leave on WTO terms. Martin Selmayr has demonstrated how successfully the EU have played hardball. It is high time we started playing back.
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