Boris Could Agree Reheated Version of May’s Deal, Showdown with ‘Spartans’ Looms


Mounting that evidence that Prime Minister Boris Johnson is willing to sign up to Theresa May’s withdrawal treaty with the European Union minus its contentious “backstop” may lead to a showdown with Tory Brexiteers on his backbenches.

The former prime minister’s thrice-rejected Withdrawal Agreement with the EU is not a final deal, but merely secures a so-called “transition” period of around two years — able to be extended — in which the United Kingdom leaves the European Union in name but retains all aspects of full membership, minus representation in EU institutions.

This period is supposed to be used to negotiate a final relationship, with an indefinite “backstop” incorporating the British province of Northern Ireland into the EU’s Customs Union and Single Market and mainland Great Britain into an EU-controlled “single customs territory” if this cannot be achieved.

Boris Johnson vigorously opposed all aspects of this so-called deal after resigning from Mrs May’s Cabinet — but is reportedly now willing to swallow it minus the backstop, and with some changes to its accompanying Politcal Declaration.

Some 49.02 per cent of Tory members believe Mrs May’s withdrawal treaty is unacceptable even without the backstop, however, compared to 43.27 per cent who would be willing to live with it — and the hard core of Brexiteer “Spartans” within the parliamentary party’s European Research Group (ERG) faction have vowed to oppose it, leading to threats from the party chairman that they will be expelled for voting against a deal.

Brexit Party leader Nigel Farage has also warned that if Johnson is willing to submit to Theresa May’s withdrawal treaty without the backstop, it means he still “wants to give away £39 billion; he would be happy for the EU’s courts to have continued jurisdiction over British law; he would be content for freedom of movement to continue for the foreseeable future; and there will be no insistence on taking back our territorial waters”.

Martin Howe QC, a senior barrister who has become something of a lodestar for academically-minded eurosceptic groups such as Briefings for Brexit and Lawyers for Britain, has lent some intellectual weight to Mr Farage’s concerns in a research paper penned in collaboration with fellow legal eagles Sir Richard Aikens PC and Thomas Grant, outlining some of the many downsides of Mrs May’s treaty beyond the backstop:

– obligations to pay large sums to the EU greatly in excess of the UK’s
international law obligations, conventionally described as ‘£39bn’ but likely
to turn out to be a significantly higher sum. In a departure from international
treaty practice, the UK’s liability to pay these sums would be decided by the
[Court of Justice of the European Union] instead of by a neutral international body.

– continuing direct effect and supremacy over UK law of the [Withdrawal Agreement] itself
(including rules of EU law which it continues to apply to the UK) and,
which, because of the commitment in the [Political Declaration], will be carried forward into
the future relationship agreement.

– extensive post-Brexit [Court of Justice of the European Union] jurisdiction as described above, both for the [Withdrawal Agreement] itself and (via the commitment in the [Political Declaration) for the future relationship agreement.

Howe et al also note that provisions allowing the the Court of Justice of the European Union (CJEU, sometimes referred to as the ECJ) to adjudicate on the rights of EU citizens in Britain — with no corresponding power for British courts to adjudicate the rights of British citizens in the EU — would “operate in a way which could be gravely damaging to the UK and would prevail literally for generations”.

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