Restoring UK Sovereignty?

Why Consult ‘The Star Chamber’?

When Boris Johnson signed last December’s EU-UK trade deal, he, like many in the country, waited for the verdict of the ‘Star Chamber’, a group of lawyers convened by the European Research Group (ERG) of MPs and chaired by Sir Bill Cash MP. The Star Chamber would review the trade deal, line by line, to advise on whether it was consistent with UK sovereignty. Johnson, reported as saying ‘I know the devil is in the detail’, was confident the deal would survive ‘ruthless’ scrutiny from the ‘Star Chamber legal eagles’.

The Politiea report ‘The Lawyers Advise’ presents a full version of the Star Chamber’s legal opinion on Johnson’s EU–UK Trade and Cooperation Agreement (TCA), signed on 24 December 2020, specially prepared for publication by a team including two of the Star Chamber lawyers and two other lawyers. The trade deal was the next act in the protracted drama played out after the 2016 EU referendum between the EU and the UK.¹ Throughout the battles in parliament, the government and the courts, the ERG group of MPs, who worked towards a sovereign Brexit, had played an important role. A minority on the parliamentary benches in the May era, these MPs had been influential  -in seeking to hold the government to account, analysing the more complex legal and constitutional implications of different options, often consulting specialist legal advice, including from some of the lawyers who later judged the TCA. Throughout the process since 2016, their focus had been on what constitutional and trade arrangements would be consistent with the goal of restoring UK sovereignty, and on where Theresa May’s deal had failed. The   legal opinion on which they would judge the TCA is therefore of particular interest, a historical document on the basis of which the most exacting

Eurosceptic MPs approved the new Prime Minister’s deal and so allowed for its smooth adoption by parliament.

The authors of the report include Martin Howe QC, Barnabas Reynolds, James Webber, practising lawyers specialising in areas of EU law and its regulatory framework affecting economic activity, and David Collins, Professor of International Economic Law at City University. Howe’s work for Politeia and as Chairman of Lawyers for Britain had set the constitutional and trade framework against which the different official proposals emerging throughout would be judged – from the transition plans that would leave the UK a ‘vassal state’ to the May Withdrawal Agreement and the Northern Ireland Protocol in November 2018 showing how political rhetoric failed to reflect the legal reality.²

Other work by these lawyers since 2016 had prepared the way for a trade deal to be reached in a comparatively short time, between March and December 2020. Reynolds, in a series of Politeia publications, showed how financial services trade could be on the basis of mutual recognition with single market ‘passport’ regulations replaced in the UK by UK laws – helping to shape the UK’s proposal in 2018 for a Free Trade Agreement (FTA) based on mutual recognition that each party’s laws guaranteed equivalent standards (‘enhanced equivalence’). That proposal is still on the table, with all to play for.³ James Webber’s proposals explained how state aid rules could be organised in line with international practice.⁴ David Collins proposed agreeing a minimalist, tariff free, quota free, goods trade deal which could be expanded over time, rather than seeking to achieve everything at once, an approach reflected in reaching the TCA mutual recognition of professional services qualifications, on which limited progress was made; and recommendations for a mechanism to resolve the ‘level playing field laws’ disputes through WTO anti-dumping and anti-subsidy measures, reflected in the TCA ‘rebalancing arrangements’ for tackling potential breaches.⁵ They were assisted by Christopher Howarth and Emily Law. Each judged the TCA and its detailed trade framework on whether it was consistent with UK sovereignty.

This goal, sovereignty, had become a matter of bitter political division amongst those in power between 2016-19, as this chapter will now discuss.

A Question of Sovereignty

The decision taken by the electorate at the 2016 referendum to leave the EU was followed by a protracted struggle involving different parties – the EU, the UK Government and Parliament and other groups and individuals, some of whom successfully involved the courts. For the majority of voters who backed ‘leave’, however, the matter remained straightforward. In casting their vote, as a number of these interviewed after the referendum told the BBC, they had ‘voted for sovereignty’.

Nevertheless, for many charged with executing the decision, sovereignty was seen as a problem to be overcome. In parliament, where the majority had favoured remaining in the EU, many now wanted the UK to be closely linked to the EU and within its legal orbit, perhaps in a quasi customs union, perhaps within a single market arrangement. Although such a course would entail the application of the EU rulebook and its supervision by the European Court of Justice (ECJ), in their view Brexit would best be organised through a degree of continuity rather than constitutional change. The alternatives, of being outside the EU orbit, or the UK leaving without a deal as it was entitled to do under Article 50 of The Treaty on European Union (The Maastricht Treaty), were anathema. Yet a no deal exit was to become the default under the EU Withdrawal Act (June 2018), which repealed the European Communities Act of 1972 and set out the arrangements for withdrawal, including what would happen if no deal were reached. Many in parliament became even more determined to prevent a no deal exit over the following eighteen months. They even attempted to seize executive powers and bind the government to their will. That set the stage for conflict and turmoil in parliament until December 2019.

For the government, initially publicly committed to leaving the EU, the EU’s single market and its customs union, the task was twofold. The prime minister, presiding over a minority government after the 2017 election, sought to juggle the numbers in an increasingly fractious parliament, keeping different options alive. At the same time she sought to negotiate with the demands of the EU as it imposed its own one track negotiating strategy, and remained intent on a large measure of legal and economic control. In parliament, many MPs disagreed with the leave vote but also disagreed amongst themselves about the extent and pace of Brexit.

With the EU as well as on the parliamentary front, the battle for over three years was about how closely the UK should remain within the EU orbit, about ‘how much’ Brexit and how much sovereignty there should be. Brussels set the timetable, obliging the UK to meet the EU’s withdrawal (‘divorce’) terms for a settlement, before it would even begin to discuss a trade deal – a strategy that would see the prime minister gradually out- manoeuvred and isolated.

First came the EU’s 2017 plan to keep Northern Ireland within the EU’s customs and regulatory area. Its aim, so the EU claimed, was to avoid a hard border on the island of Ireland: the ploy, though serving the purposes of EU realpolitik in giving Brussels a lever over the UK’s economic arrangements, was more likely to exacerbate unionist and nationalist divisions than preserve the spirit of harmony presumed to flow from the 1998 Good Friday (or Belfast) Agreement. Despite the UK rejecting the plan in December 2017, the EU included it in the draft withdrawal agreement which the EU published on 28 February 2018, with a Northern Ireland Protocol. Under this, Northern Ireland would remain in an EU customs union and be in a common regulatory area with the EU, with EU rules for goods and agri-goods, and state aid.⁷ The Protocol would only cease if satisfactory alternative arrangements to avoid a hard border were agreed.

The EU made no mystery about the future basis it intended for UK-EU relations and followed up with draft ‘guidelines’ for that relationship. For a free trade agreement for goods, there must be reciprocal access to fishing waters, and for services the aim would be to allow market access to provide services under host state rules. To prevent the UK having ‘unfair competitive advantage’, there must be ‘robust guarantees’ to ensure a level playing field for ‘substantive’ rule alignment with EU and international standards, mechanisms for effective implementation, enforcement and dispute settlement ‘as well as Union autonomous remedies …’. Future governance would take into account the need to ensure ‘effectiveness and legal certainty’ and the autonomy of the EU legal order, including the role of the ECJ as developed in the jurisprudence.⁸

Restoring UK Control?

Initially May held out, refusing to accept that Northern Ireland would be within the EU’s customs and regulatory area, since this implied a breach of the UK’s constitutional integrity and a border down the Irish Sea to which no UK prime minister ‘could ever agree’, and highlighting this, and other matters on which the parties did not agree, in the UK’s version of the draft withdrawal agreement on 19 March.⁹ For the future, she proposed two options for customs management outside the EU customs union and an FTA on the basis of ‘a comprehensive system of mutual recognition’ in which the The UK published a highlighted version of the Draft Withdrawal Agreement on 19 March 2018, with 129 pages of text that indicated those EU proposals on which there was disagreement (white), others which were yet to be settled (yellow) and those matters which were agreed (green): The Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. default was that UK law ‘may not necessarily be identical to EU law but … should achieve the same outcomes …’. For services, the goal was mutual access on the principle of mutual recognition; for financial services the aim was enhanced equivalence, building on an EU law concept for mutual recognition, while providing for greater certainty for businesses against a potential or sudden unilateral decision by making enhancements.¹⁰

But, increasingly embattled and most likely unequal to the machinations of the EU’s negotiators or to those of some UK officials for whom manifesto pledges are there to be circumvented, May’s resistance to the EU’s draft agreement was whittled down over the next months. EU demands overcame UK preferences, the UK moving to a different plan to keep the whole of the UK within the EU’s legal orbit for goods trade, and Northern Ireland within the EU’s economic and regulatory area. The new scheme appears to have been signed off at a private meeting with Angela Merkel in Berlin before being presented to and imposed on the cabinet at Chequers on July 6^th. Under it, the UK and EU would be bound by a common rulebook for state aid, goods and agri-products and the UK would commit to harmonisation with EU rules, though there would be parliamentary oversight on whether to include individual rules within the UK’s legal order. A White Paper followed a week later. ¹¹

The Chequers plan, which would put parts of the UK economy under EU economic law, marked the UK government’s official change of course to limit Brexit to the parameters set by the EU, while attempting to pretend otherwise. It prompted the resignation of two cabinet ministers, Boris Johnson and David Davies, with a number of junior ministers following suit. Other senior cabinet ministers may have been reconciled to, if not eager about, the prospect of keeping the UK goods economy bound into the EU’s economic rulebook, partly to prevent potential disruption to industrial sectors, particularly those with EU supply chains. They may also have been influenced by the lobbying of powerful EU international corporations, such as BMW-owned Rolls Royce and the multinational Franco-German dominated Airbus, threatening job losses and retrenchment. Besides, the UK’s March proposals had also been aimed at services on the basis of mutual recognition of each party’s laws.¹² Given that the goods economy represented less than 20 per cent of the UK economy, with services accounting for around 80 per cent, ¹³ ministers may have believed a quid pro quo might be agreed on that basis. In any case, after Chequers, further concessions to the EU followed before the final position was revealed in November’s Withdrawal Agreement (the ‘May Deal’).

Under the May Deal and its Northern Ireland Protocol (increasingly referred to as the ‘Backstop’), the UK would be in a single customs area with the EU under many of the same economic rules, including those for ensuring a level playing field. Northern Ireland would fall within both the customs union and much EU law, e.g. for agri-goods, state aid, VAT. The formal expectation was that the Protocol was to be temporary, both sides to use ‘best endeavours to conclude, by 31 December 2020, an agreement which supersedes [the] Protocol in whole or in part’ (Arts. 1, 2). Furthermore, matters of EU law in the agreement would be subject to ECJ jurisdiction.¹⁴ After a five hour discussion May drove the treaty, a 599 page document, through the cabinet at a meeting where no vote was taken. This prompted fresh resignations. Ministers had not been given the chance to consult or consider the document collectively in advance, though some had been permitted to glance through it at the eleventh hour in Downing Street, the night before.

Though, under the May deal, the UK would not achieve the sovereignty for which people had voted, nor would full law-making powers be restored to this country, the government seemed to make matters worse. The Prime Minister’s summary for MPs that it ‘takes back control of our borders, laws and money … [and] it protects … the integrity of the United Kingdom …’, or that the Northern Ireland ‘backstop’ arrangements were temporary, did not hold up in parliament or with a politically savvy and acute public, marking the beginning of the end for the May regime in the final battles in parliament and with the people.¹⁵

In the Commons, Jeremy Corbyn, the Opposition leader, explained that the Withdrawal Agreement would mean that the UK entered into an international treaty it could never leave. ‘The backstop locks Britain into a deal from which it cannot leave without the agreement of the EU’; it applied ‘separate regulatory rules to Northern Ireland, creating a de facto border down the Irish Sea’ with Northern Ireland under the Customs Union ‘but not the rest of the UK’. He reminded the prime minister of her words that such a scenario was something which ‘no prime minister of the United Kingdom could ever agree to’.¹⁶ The prime minister ‘pulled’ the first vote scheduled for 10 December, probably because it would not pass. Many MPs who had started out by questioning what, precisely, ‘leave’ meant, and then opposing the 2018 European Withdrawal Bill, now focussed on opposing the May Deal, while some who continued to oppose a ‘no deal’ exit sought to seize executive power to prevent such an exit and fashion a more congenial finale. Throughout early 2019 the prime minister attempted three times to secure the backing of parliament. May’s deal, as it became commonly called, was rejected three times by the Commons, on 15 January 2019, on 12 March and on 29 March, after which the electorate returned to pass judgment.

At a Welsh by-election in March, the UK-wide local council elections in May, and the EU parliamentary poll in June, when the new Brexit Party swept the polls, the voters dramatically cut the vote share of both main parties, and Mrs May announced her resignation, to take effect from July.

Changing Course

Bequeathed to the new prime minister, Boris Johnson, was a difficult legacy: a minority government, unprecedented turmoil in the Commons, a Withdrawal Agreement he had denounced, a 31 October exit date (delayed first from 29 March and then 12 April) and a deadlocked parliament in which MPs sought to seize executive control to prevent a no deal exit, emboldened by the five year fixed-term parliament act and encouraged by a partisan speaker. Choosing the territory on which he proposed to fight, he renegotiated the Withdrawal Agreement with the EU in October, removing the obligation for Great Britain to remain in the EU customs union and under related EU economic law. Northern Ireland, though to be in the UK’s internal market and customs territory would remain under EU regulations for some matters including goods, agri-products and state aid. Other inherited problems remained, e.g. the ECJ’s role in determining EU citizens’ rights, and the financial payments to the EU thought to exceed legal obligations. Still, each side committed to using ‘best endeavours, in good faith’ to negotiate agreements for their future relationship as outlined in the new ‘Political Declaration’. In that document both the UK and EU agreed ‘to develop an ambitious… economic partnership…encompassing a Free Trade Agreement…’.¹⁷

The focus returned to Westminster, where, in the end, Opposition MPs broke ranks sufficiently to support dissolution, and a general election, fought on 11 December, returned Johnson on a manifesto pledge of leaving the EU, its Single Market and the Customs Union, winning an 80 seat majority, gaining 48 seats and the highest percentage of the popular vote since 1979. Exit, on 31 January 2020, would be followed by a transition period of 11 months to end on 31 December, deal or no deal.

Trade on Whose Terms?

.. the envisaged agreement should uphold common high standards, and

… over time with Union standards as a reference point, in the areas of State aid, competition, state-owned enterprises, social and Employment standards, environmental standards, climate change, relevant tax matters and other regulatory measures and practices in these areas … [it] should rely on appropriate and relevant Union and international standards

…[and] include … adequate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement, including appropriate remedies. The Union should also have the possibility to apply autonomous, including interim, measures to react quickly to disruptions of the equal conditions of competition in relevant areas, with Union standards as a reference point … (European Council negotiating aims, 25 Feb 2020)¹⁸

… [The] future relationship will only deliver … if it includes robust guarantees which ensure a level playing field … to prevent unfair competitive advantage that the UK could enjoy through undercutting of current levels of protection with respect to competition and state aid, tax, social, environment and regulatory measures and practices. This will require … substantive rules aligned with EU and international standards, adequate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement mechanisms in the agreement as well as Union autonomous remedies … (Donald Tusk, Art.50, Guidelines, 7 March 2018)¹⁹

As these two extracts show, the EU’s proposed trade aims, announced in February 2020, envisaged a trade and economic partnership little changed in aims from that of 2018, a position underlined by the caveat that the 2018 guidelines were to define the 2020 EU approach. For a zero tariffs, zero quota free trade agreement (FTA), the UK must ‘ … uphold common high standards’, with EU standards as the reference point, on level playing field laws such as environmental and labour market standards, state aid and subsidies. There appeared also to be the expectation that the UK would commit to align its laws with those of the EU in years to come. The EU would be the arbiter of whether or not the UK’s arrangements passed muster, the EU’s own system used as the measure. Moreover, Donald Tusk’s March 2018 guidelines for the European Council would define the EU’s approach. The list of chosen targets covered many parts of UK policy and its productive economy, specifically referring (amongst others) to: ‘State aid, competition

… social and employment [and] … environmental standards, climate change, relevant tax matters and other regulatory measures and practices in these areas’ opening the way for more extensive EU interventions on the conduct of the UK economy, for example on energy pricing and competitiveness in energy supply. The EU stipulated that the agreement should rely on relevant EU and international standards; that there should be ‘mechanisms …[for] effective implementation … enforcement and dispute settlement’ domestically; and that these should include ‘remedies … to apply autonomous … measures … quickly’ if equal competition conditions were breached, with EU standards serving as a ‘reference point’.²⁰ The likelihood was that the EU would seek to extend its remit to related areas, potentially intruding into other nooks and crannies of UK policy and economic life, with the ECJ adjudicating matters of EU law.

Anyone who had followed the process since 2016 could see that, if the EU again carried the day in the 2020 trade talks, UK trade and the economy would be stymied by the EU’s restrictions. Instead of the normal arrangements for international trade under which a country trades under its own laws, selling to the other party under the latter’s standards but striking a free trade deal on the basis of mutual recognition of the other party’s rules, with disputes adjudicated by independent arbitration, the EU appeared to insist on setting its own arrangements as the yardstick by which the UK would be judged, and to imply that it and the ECJ would be judge and jury for every alleged breach under its own system.

The UK committed to upholding common standards. But it would not agree to be bound by EU-made rules or the jurisdiction of the ECJ on these or for dispute resolution. As early as August 2019, Boris Johnson had explained:

‘ … When the UK leaves the EU and after any transition period, we will leave the single market and the customs union. Although we will remain committed to world-class environment, product and labour standards, the laws and regulations to deliver them will potentially diverge from those of the EU. That is the point of our exit and our ability to enable this is central to our future democracy.’ (Boris Johnson to Donald Tusk, 19 August 2019)

Johnson had from the outset contended that UK laws could ‘potentially’ diverge from those of the EU without undermining the UK’s high environmental, product and labour market standards. He had rejected the Chequers plan and the May Deal, which compromised the UK’s freedom to diverge; had revised the parameters of Theresa May’s deal to extricate swathes of the UK economy from the EU legal orbit and a previous commitment to align UK with EU laws, albeit at the cost of leaving Northern Ireland in the EU’s regulatory area; and had fought and been returned in a general election on the pledge that he would leave the EU, its single market and its customs union.

The stage was set for a year of difficult trade talks. Throughout 2020, EU insistence on the level playing field laws rules, on state aid and subsidies as well as on other matters, made reaching a quick trade deal seem unlikely. Johnson staked out the UK’s ground and stuck to it; his chief negotiator, David Frost, appeared to remain impervious to and unpliable in the face of EU demands, with each party holding out. By the autumn a trade deal seemed ever more unachievable. The prime minister resurrected the option of an ‘Australian’ type deal, similar to the off-the-shelf standard World Trade Organisation (WTO) trade arrangement and the term now used for a no deal exit, rather than the Canada, tariff free, quotas free model sought. The UK prepared for a ‘no deal’ exit, with Michael Gove, the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, taking charge.

By the end of the year, though, a formula was found under which a legal mechanism could be used to test and judge unfair distortions. But the question remained whether for other contested areas, such as fisheries, state aid and subsidies, the UK would be sovereign, with the country and its businesses free trade under its own laws? Did the TCA terms to prevent distortion and ensure fair competition on environmental, labour market and product standards, with their elaborate arrangement under which allegations of distortion would be subject to high thresholds of proof and adjudicated by independent arbitration, meet UK aims?

Unfinished Business

Although this introduction has focussed on the question of trade in goods and agri-products, and the level playing field laws, there remain other areas of unfinished business where the TCA falls short of expectations. Most notably, services trade is not covered. Yet, the minimalist agreement opens opportunities to be seized and developed. For services, the UK still aims for trade on the basis of mutual recognition. For financial services the UK has already gained a considerable advantage, because the TCA leaves it unfettered. The UK is therefore now free to restore its law for the sector and remove the unnecessary layers of inherited and stifling, anti-competitive, EU law – to the benefit of its wider trade, globally and in the EU, while pursing the aim of an enhanced equivalence trade deal.²¹

Another matter of unfinished business, potentially more serious, remains Northern Ireland’s status. Constitutionally a part of the UK, under the Withdrawal Agreement and its Protocol, Northern Ireland is also in the EU’s economic regulatory area. A border placed in the Irish Sea, ostensibly for checks on goods and agri-products entering and leaving the EU single market and customs union, has hindered the free exchange of goods between one part of the UK and another, and runs contrary to the spirit of the Good Friday Agreement. It has also undermined the stability of the status quo ante at all levels.

In these areas, there is much at stake. Not only are there the technical aspects of framing trade treaties in international law. But there is the constitutional and political reality of UK sovereignty, which has proved so difficult for the EU to accept.

The UK is an independent state, having democratically voted to restore sovereignty, not once, but three times since 2016, robustly, plainly and determinedly so in 2019. It has left the EU under the arrangements set out in Article 50. The EU has therefore lost control of UK law-making. It should now accept that fact, extend trade on the basis of enhanced international arrangements. It should also agree on workable arrangements to replace the Northern Ireland Protocol that respect both the constitutional status of Northern Ireland and the Good Friday Agreement.

1 Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community [Euratom] and the United Kingdom of Great Britain and Northern and Northern Ireland, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat [i]a/file/948119/EU-UK_Trade_and_Cooperation_Agreement_24.12.2020.pdf.

2 Martin Howe’s Politeia publications include: Avoiding the Trap – How to Move on from the Withdrawal Agreement, 2019; co-authored with Richard Aikens and Thomas Grant. Thomas Grant’s Politeia publications include: Leave as You Entered: Brexit in International Law. For his analyses for Lawyers for Britain, see: https://lawyersforbritain.org/time-to-replace-the- deeply-flawed-northern-ireland-protocol, https://lawyersforbritain.org/this-flawed-deal-is-a- tolerable-price-to-pay-for-our-freedom.

3 Barnabas Reynolds, A Blueprint for Brexit: The Future of Global Financial Services and Markets in the UK (2016) and subsequent publications 2017-20, https://www.politeia.co.uk/wp-content/Politeia%20Documents/2021/FEB%20-

%20Barney%20Reynolds/Publications%20-

%20Barnabas%20Reynolds.pdf?_t=1612434078.

4 James Webber, All Change? UK State Aid after Brexit: What Law? What Courts? (2020), The Withdrawal Agreement, State Aid and UK Industry: How to Protect UK Competitiveness (2019) co-authored with Barnabas Reynolds.

5 David Collins, How to Play the EU’s Playing Field – trade Remedies for a Trade Deal (2020), The EU, the UK and Global Trade – A New Roadmap (2019), Negotiating Brexit: The Legal Basis for EU & Global Trade (2018).

6 This section draws on my Deal, No Deal? The Battle for Britain’s Democracy (2019).

7 Draft Withdrawal Agreement, 28 Feb 2018 TF50 (2018) 33 – Commission to EU 27, 118 pages, Protocol on Ireland/Northern Ireland. pp 98-105, III, 3-9, ‘Common regulatory area’; V, 15, ‘Subsequent agreement’. https://ec.europa.eu/info/sites/info/files/draft_withdrawal_agreement.pdf.

8 7 March 2018, European Council (Art.50) (23 March 2018)-Draft guidelines, https://www.euractiv.com/wp-content/uploads/sites/2/2018/03/European-council-Art.50-23- March-2018-Draft-Guidelines.pdf. paras 9, 12 (Tusk Guidelines, 7 March 2018).

9 May told the Commons on 28 Feb that no UK prime minister ‘could ever agree’ to the EU proposal that Northern Ireland be under separate single market arrangements, threatening the constitutional integrity of the United Kingdom; she expected changes in the ‘common regulatory area’ after Brexit on the island of Ireland. https://www.bbc.co.uk/news/uk-politics- 43224785.

10 For the UK’s future position, see Theresa May’s speeches, 2 March 2018, https://www.gov.uk/government/speeches/pm-speech-on-our-future-economic-partnership- with-the-european-union and 5 March 2018, https://www.theyworkforyou.com/debates/?id=2018-03-05b.25.0 The customs options were either for a partnership that mirrored (for the UK) EU rules for exports of EU bound goods, or an arrangement jointly to implement measures, with specific provisions for Northern Ireland. For financial services, see Philip Hammond, 7 March, https://www.gov.uk/government/speeches/chancellors-hsbc-speech-financial-services.

11 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_d ata/file/723460/CHEQUERS_STATEMENT_-_FINAL.PDF.

12 See note 10 above, May speeches, 2, 5 March 2018, Hammond speech 7 March 2018.

13 House of Commons Library figures (March 2021) suggest that in 2019, the service industries accounted for 80% of total UK economic output (Gross Value Added). https://commonslibrary.parliament.uk/research-briefings/sn02786/.

14 Withdrawal Agreement, endorsed by EU Council 25 Nov 2018 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat a/file/759019/25_November_Agreement_on_the_withdrawal_of_the_United_Kingdom_of_ Great_Britain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atom ic_Energy_Community.pdf

15 https://www.gov.uk/government/speeches/pm-statement-on-brexit-negotiations-15- november-2018. The PM, updating MPs in the House of Commons, had suggested that it was unlikely the backstop, ‘an insurance policy’ would be used’, that it was ‘temporary’, and that there was ‘a mechanism by which the backstop can be terminated.

16 https://www.youtube.com/watch?v=LjQwkKvdMYc, 15 Nov 2018.

17 Agreement on the withdrawal of the UK from the EU and European Atomic Energy Community, 19 Oct 2019, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat a/file/840655/Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Britain_a nd_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy_Co mmunity.pdf; Political Declaration, 19 Oct 2019, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_dat a/file/840656/Political_Declaration_setting_out_the_framework_for_the_future_relationship_between_the_European_Union_and_the_United_Kingdom.pdf.

18 Section 15, Level Playing Field and Sustainability, https://www.consilium.europa.eu/media/42736/st05870-ad01re03-en20.pdf.

19 European Council 23 March 2018 7 March 2018, https://www.euractiv.com/wp- content/uploads/sites/2/2018/03/European-council-Art.50-23-March-2018-Draft- Guidelines.pdf.

20 (5870/20ADD 1 REV 3; Annex; Council decision authorising the opening of negotiations with the UK for a new partnership agreement, Addendum (negotiating directives), 25 February 2021.The document (II,6) maintained that the EU’s approach would ‘continue to be defined by the… positions and principles set out in the 23 March 2018 and 25 Nov 2018 documents.’

https://www.consilium.europa.eu/media/42736/st05870-ad01re03-en20.pdf.

21 The subject is developed in Restoring UK Law: Freeing the UK’s Global Financial Market, Barnabas Reynolds, Politeia, 2021.