Just what is the truth about trade deals under the PM’s ‘new’ Withdrawal Treaty?

Graham Charles Lear
4 min readNov 2, 2019

Many questions are being asked about who is right about the UK’s ability to do free trade deals under Boris Johnson’s ‘new’ Withdrawal Treaty. №10 has been briefing journalists in the last 24 hours, and the public are being given the impression that both Nigel Farage and US President Donald Trump are wrong.

Well let’s look at it

Let’s look at what Boris Johnson told the BBC’s Laura Kuenssberg yesterday

Off-the-record briefings from №10 are one thing, but when put on the spot what did the PM actually say about trade deals yesterday?

BBC: “So the President hasn’t looked at it then? Because he said, “You can’t do it, you can’t trade, we can’t make a trade deal with the UK.” So he’s misunderstood it?

” PM: “I don’t wish to comment on what he may or may not have…” [He tailed off.]

You will note that the Prime Minister did not immediately come out and say that the UK can do (and implement) a trade deal with the USA or other countries if the UK ‘leaves’ the EU on 31 Jan 2020.

I start with some basic facts.

Below I summarise the reality based on what the Treaty itself says

  1. The text of Theresa May’s Withdrawal Agreement has not changed — only the Northern Ireland Protocol has
  2. The changes to the N.I. Protocol are welcome, but they are not nearly enough
  3. All the other completely unacceptable elements of Theresa May’s Treaty remain
  4. These include.
  • Paying a ‘divorce bill’, decided by the EU, and now expected to be well over £50 billion
  • Getting nothing in return for this
  • The UK will be subject to a foreign court (ECJ) for over 100 years in some cases
  • No taking back control of our waters, no independent foreign and defence policy
  • The UK is subject to new EU legislation during Transition, which can last for years, and which could damage our economy significantly — the UK will have no vote and no veto

No right to implement trade deals with other countries

Crucially, during Transition, the UK will have no right to implement international free trade deals — a key economic benefit of Brexit — which would result in cheaper imported goods and stronger exports.

Under the Withdrawal Agreement, the UK CANNOT implement any free trade deals with the USA or with any other country until the end of Transition.

Even after Transition, the obligations contained in the Political Declaration (PD) bind the UK into all kinds of obligations. The revised PD is better than Mrs May’s but is still unacceptable. Any EU trade deal must ensure “a level playing field for open and fair competition” and “deep regulatory and customs cooperation”.

Here is paragraph 21 of the PD:

However, with a view to facilitating the movement of goods across borders, the Parties envisage comprehensive arrangements that will create a free trade area, combining deep regulatory and customs cooperation, underpinned by provisions ensuring a level playing field for open and fair competition, as set out in Section XIV of this Part.”

The key aspects are “deep regulatory cooperation” and “a level playing field”. Whilst these obligations may have been watered down, they still exist. How in any sense does this feel like being a free, independent, and sovereign country?

I will leave readers with the words of the eminent QC and specialist in EU law, Martin Howe. Mr Howe has now said that “I can understand a political judgement that the revised deal is still a bad deal, but is tolerable as a price for the greater prize of the United Kingdom regaining our freedom after Brexit.”

However here is what he wrote about the new Withdrawal Agreement:-

The most important and damaging feature which remains is the long term subjection of the UK to rulings by the ECJ. At present, the ECJ is a multinational court in which we jointly participate. After we exit the EU, it will become an entirely foreign court. It will be an organ of the opposite treaty party with whom we may be in dispute, owing no loyalty at all to the UK. It is virtually unheard of in international relations for any sovereign independent state to submit the interpretation of its treaty obligations to the courts of the opposite treaty party, allowing them to be effectively re-written for the benefit of that party.”

“This clause was originally imposed by the EU on the desperate former Soviet republics of Ukraine, Georgia and Moldova. It was successfully resisted by Norway and the other EEA States and most recently has been rejected again by Switzerland in the EU’s attempt to impose it as part of a new framework agreement. Dr Carl Baudenbacher, a Swiss lawyer who recently retired as president of the EFTA Court, has said ‘It is absolutely unbelievable that a country like the UK, which was the first country to accept independent courts, would subject itself to this.‘ Indeed, it is hard to understand why the UK which is so much bigger than Switzerland and far less dependent on trade with the EU, should be willing to succumb to this clause.”

International trade must be conducted under the law. And if we ‘leave’ the EU under the new Withdrawal Treaty on 31 Jan 2020, that law will be the EU’s law.

So there you have it both Trump and Farage no matter how you hate them have told the truth about the trade with the US. And what’s more, Boris knows they have told the truth.

[ Sources: EU Commission official texts | BBC interview with Boris Johnson 01 Nov | Martin Howe QC of Lawyers for Britain ]



Graham Charles Lear

What is life without a little controversy in it? Quite boring and sterile would be my answer.