May’s Biggest Lie: Ending EU Jurisdiction
Theresa May’s most outrageous lie is that she is ending European jurisdiction over Britain.
You don’t need to read the nearly 600 pages of the draft agreement to figure out that she is lying. Just remember that she promises also that she will keep Britain tied to EU laws on customs, the environment, labour standards, social standards, and the fiscal costs thereof.
Ask her this: how can she keep Britain tied to EU laws without being subject to EU jurisdiction?
Please ask her, because journalists don’t ask her. Most journalists seem too lazy, ignorant, or biased to compare May’s lies against her draft agreement.The whole agreement, and every EU law, agency, programme, activity in which Britain remains, and every aspect of the customs union itself, are subject to the European Commission (the unelected part of the EU’s executive) and the European Court of Justice or ECJ.
Article 4 is the part that effectively declares how the whole agreement is to be interpreted in any judicial sense. It begins:
The provision of this Agreement and the provisions of [European] Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.
In other words, EU law remains superior to British law at any time and in any area the EU wants. In the event of any dispute, the adjudicator would be the EU itself.
As we have seen in the EU’s handling of its migrant crises, fiscal crises, Eurozone crises, internal audits, member state challenges, etc., the EU interprets its own rules to suit itself.
Article 4 continues with paragraph 2:
The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible provisions, through domestic primary legislation.
In other words, not only is Britain’s interpretation of law subject to EU courts, but Britain’s Parliament must follow the EU’s Parliament. If Britain fails to comply, the only adjudicator allowable is – you guessed it – the ECJ.
Lest there be in any doubt, paragraph 3 tells Britain to interpret and apply the law “in accordance with” EU law.
Paragraph 4 tells Britain to interpret all law “in conformity” with the ECJ’s jurisprudence through the transition period. This incentivizes the EU to spew on Britain as much new legislation and case law as possible, when Britain will have absolutely no say (after May stupidly committed to leave the EU’s decision-making while keeping Britain subject).
Lest you be in any doubt of the indefinite superiority of the ECJ – even after the transition period, the word “after” is in paragraph 5:
In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.
Then the draft jumps to Article 87 before discussing arbitration of the transition period:
If the European Commission considers that the United Kingdom has failed to fulfill an obligation under the Treaties or under Part 4 of this Agreement before the end of the transition period, the European Commission may, within 4 days after the end of the transition period, bring the matter before the Court of Justice…
Lest you be misled into thinking that the ECJ will lose jurisdiction after the transition period, consider Article 95, subtitled “Binding force and enforceability of decisions.” This applies to everything that May keeps Britain in, such as Euratom and the European Defence Agency – in fact, most EU agencies, programmes, activities, treaties, laws, and the customs union itself. Articles 136 to 148 confirm these fiscal liabilities but specify few of the items that May has furtively signed back into, or never left. Bear in mind that Britain has so far incorporated only 14 of the EU’s 236 international treaties. An additional fiscal liability is the under-specified £40 billion that May signed away in December 2017 before the EU would continue negotiations.
Article 95 declares that the EU’s decisions on the administration of these things “shall be binding on and in the United Kingdom” even after the transition period, and that “the legality of a[ny] decision…shall be reviewed exclusively by the Court of Justice.”
Article 147 even makes Britain liable for “its share” of the legal costs for adjudicating fiscal issues. Worse, Britain’s share is decided by the EU alone!
The ECJ is even the final judge of when Britain can end its transition period.
The draft agreement (Article 164) provides for a “Joint Committee” to be co-chaired by the EU and Britain. Curiously, the Committee’s membership is not specified in quantity or quality, but can be assumed to over-represent the EU’s and May’s lackeys. If this Joint Committee couldn’t agree, then it could defer to an “arbitration panel” (Article 171). This is presumably what May has spun as an “independent panel.” In fact, it will be composed of only five members, selected by the “Joint Committee” from an equal number of persons proposed by Britain and the EU respectively.
If the “arbitration panel” fails to agree to whatever the EU expects it to agree to, the ECJ will decide (Article 174).
Article 168 confirms that no party will have recourse to any other party than those specified in the agreement.
You may have noticed that May is vague about what is in her draft agreement: at times, she appears confused herself. Whatever the question, she keeps repeating her lines about taking back control, ending payments, ending European jurisdiction, etc. All are lies.
If ever challenged by a journalist who has actually read the draft (on Sunday, even Jeremy Corbyn admitted he hadn’t read it yet), May could distract you with Article 158, which incorporates what she touted in December 2017 as a concession (in return for that £40 billion) from the EU – being a period of eight years after the transition, when British courts could ask the ECJ for help interpreting EU case law. In December 2017, she spun this confusing and unnecessary article as proof that EU jurisdiction will end, because the ECJ will be reduced to a consultant, but this article covers only EU law that Britain incorporates into British law, not the EU agencies, treaties, laws, and the customs union in which Britain will remain.
If you’re confused, that’s what May is banking on. Lies are easier to sell if you keep everything complicated. It’s the only thing she and the EU are expert at.