From Gina Miller's Twitter. A link to the blog of one of the top EU lawyers:
https://endthechaos.co.uk/
Hard facts on the Brexit deals on offer


As the Article 50 stopwatch counts down, the Brexit rhetoric gets louder, yet emptier and more divisive. By January 26 2019, at the latest, MPs will have to put aside slogans and take decisive action.
For ordinary bystanders who look on, perplexed at the layers of complexity, confused by the irreconcilable objectives, frustrated by the resignations, the shifting positions, the ducking and weaving, the endless delays – how are we to make sense of it all? Worse still, if we are called upon to cast another vote in a referendum, how do we compare and evaluate the options available?
One thing is now clear. The Brexit decision is not as simple as a fork in the road between deal or no deal. That binary choice is, like the referendum question, far too simplistic for a multifaceted issue as complex as this.
In fact there are four options for leaving – and one option to retain the status quo:
– May’s deal: a Withdrawal Agreement to hold the fort while we negotiate a future framework agreement based on some trade in goods, but not frictionless trade nor free movement of people, capital or services.
– Norway Plus: tweak the Withdrawal Agreement and redesign the political declaration (“PD”) to sign up to a modified version of the EFTA Convention plus a separate treaty for a Customs Union;
– Canada: reject the deal and redesign the PD to effect a free trade agreement similar to that with Canada;
– “No Deal”: no agreement – no transition – immediate WTO tariffs (assuming the UK schedule can be agreed in time) – customs and checks on phytosanitary checks at the borders, ie. the health of agricultural products etc – rationed supplies of medicines, chemicals and energy and so on. This is almost universally recognised (except by hardline Brexiters) as economic suicide;
– Existing Deal – Revoke and Remain: pull back the Article 50 notice and stay in the EU on the same terms so we retain the UK’s bespoke vetoes, rebates and exemptions.
To plot a course through these choppy waters I have attempted in the “Traffic Light” Risk Assessment below to analyse the merits of each of the above options; first, in the top half of the table, by the Lancaster House “Red Lines”, which is how No. 10 has chosen to interpret what voters wanted in the 2016 Referendum. In the second half of the table, I attempt to analyse what each option means for the wider economy and individual rights. To avoid speculation, I have attempted to forecast for the next seven years, which is the time it will take to negotiate and ratify the future framework with the EU as well as free trade agreements (FTAs) around the world. These grades are my subjective views and you will probably have different rankings and priorities.

As the Traffic Light Table shows:
- No Deal and Canada deliver on the Red Lines, but would be highly risky for the economy and jobs, as agreed by most commentators and research papers, from every side of the debate.
- At the other end of the spectrum, if we remain in the EU on our bespoke terms, it cuts across the Red Lines, but safeguards the economy.
- In between, May’s Deal does not achieve all the Red Lines and makes significant concessions in terms of taking back control over our laws and securing national sovereignty and democratic oversight.
For the duration of the transition period- and possibly indefinitely thereafter under the backstop – we would be tied to EU law and regulatory standards without any say as we would have no UK representatives in the EU legislative or regulatory bodies and agencies. On top of that, there would be preliminary references to the European Court of Justice, whose rulings would continue to be binding in the UK after our departure.
The legal position is that the UK cannot leave the backstop without mutual consent, thereby giving up our sovereign right to unilaterally withdraw (as recently confirmed in Wightman) without any right of appeal to arbitration or the Court.
Even a softer Brexit option like Norway Plus scores higher on those Red Lines.
The key question is whether the Red Lines are the correct litmus test for what the UK really wants or needs in our best national interest?
- Whilst most conversation and discussions are dominated by trade in goods, trade in services barely gets a mention. If we look closely at the wider economic impact in the lower section of the Table, it is clear that No Deal and Canada represent significant disruption for us as a services-based economy – over 90% of our GDP, money for the public purse, comes from services. These two options also fail to provide at all for important sectors where the UK is dependent on international trade and close regulatory cooperation.
- Mrs May’s Deal fares better but not that much better… part of the problem lies in the aspirational “wish-list” in the non-legally binding PD – a mere 26 pages- which is subject to a “best endeavours” clause and a concession that the relationship “might evolve over time”.
Even if the PD is agreed and eventually implemented, it is by no means certain that the Government will secure market access rights that are equal in scope and quality to those already enjoyed as part of our EU membership.
A careful look at the language used is paramount – there is no mention of “frictionless trade” at all – there is no right to passporting of services or mutual recognition of professional qualifications.
Access to some regulatory frameworks (such as medicines, energy, chemicals) will be by “invitation only”, offering mere observer status rather than active participation and rule-making. Further, the UK will have to pay access fees for any privileges granted.
There may be a political recognition of “equivalence” for select sectors (like financial services) but not the vast majority of the service industry. So professional advisors or consultants (like architects, accountants or lawyers) will have to re-qualify and comply with at least 31 different and conflicting sets of national rules and regulations if they want to provide a pan European service.
In terms of certainty and continuity, equivalence can also be removed by the EU at will as a sanction in any trade dispute – even if the dispute relates to unconnected issues like immigration.
- By contrast, remaining in the EU on our existing bespoke terms or the Norway Plus option both deliver for the economy. They guarantee gold-standard access to the Single Market with frictionless trade in goods, full passporting rights for all services and full regulatory cooperation.
- The Norway Plus option, which has been entirely disregarded or much maligned by commentators, offers a “half-way house”.
But, once properly understood, it satisfies the Lancaster Red Lines to a greater degree than Mrs May’s Deal. Crucially it resolves the Irish border conundrum as there would be no need for the Irish Backstop at all since the customs union would ensure real frictionless trade. Concerns about “rule-taking” and financial payments are overstated. Norway Plus would give the UK a greater say than May’s Deal.
In terms of “taking back control”:
a) EFTA only covers approximately 28% of EU rules and some sectors do not apply at all. EFTA does not cover agriculture, fisheries, foreign and security affairs, justice and home affairs or taxation.
b) Norway Plus only permits EU legislation to be carried across by unanimity so EFTA States can effectively veto certain Regulations and Directives.
That contrasts with full EU membership where a lot of internal market legislation is adopted by qualified majority so a single Member State can be out-voted and forced to adopt laws against its will.
c) Under Norway Plus, each national parliament must decide which laws are to be implemented and the Government can negotiate customised derogations and exceptions to fit its own national requirements.
d) The Norway Plus model allows active participation at no extra charge in over 17 regulatory agencies, influence over rule-making in numerous committees and involvement in funding and investment programmes like Horizon 20/20.
e) There is no supremacy or direct effect within the EFTA system.
f) References to the EFTA Court are not obligatory and its rulings are not binding but merely advisory so UK courts can disregard them. The UK would have 1 judge out of 4, who would sit on every case and play a role in writing the judgment. All proceedings and judgments are in English.
g) There are also emergency brakes on free movement of persons and capital, which have been used by Liechtenstein and Iceland in the past. They provide a degree of flexibility although their availability should not be over-stated.
What do the options mean for the economy?
- In November 2018, the Government’s own impact analysis concluded that all four Brexit options would have a negative economic impact.
All options other than Remain will hit the UK’s GDP every year, for 15 years post exit. The downturn ranges from
– 1.8% (Norway Plus)
– to 3.9% (Chequers-type deal)
– to 9.3% (No Deal).
- That contrasts with the year on year positive economic growth that Remain would entail. The UK’s EU membership in the past has accounted for a 10% increase in GDP and accounts for £4bn worth of exports each week.
- At the mid-point, Mrs May’s deal represents a net loss of £100 Billion every year, year on year, until 2030. That equates to over £1000 per person in the UK each year. Those figures do not include the further 2% baked-in costs from sterling depreciation.
That is vital public money of huge proportions that could be spent on public services, education, the NHS or regional policies to unite this fractured country.
The Mythical Freedom of FTAs
The No Deal /Canada Options are sold on the basis that they will allow the UK to trade with countries from all around the world not just the EU and take back control over our product standards.
First, the EU has never stopped the UK from buying or selling goods around the world. Just look at your supermarket shelves. What is more, we get those products tariff-free thanks to the increased bargaining power of the EU in negotiating those FTAs as a bloc.
The UK will experience a minimum of seven years of upheaval and uncertainty while the Government negotiates and ratifies new trade deals– not just with the EU but from scratch with the rest of the world.
We will lose the benefit of the 70 trade deals that we currently benefit from under the EU’s umbrella, including the newly agreed biggest trade deal with Japan, and more in the pipeline such as the Singapore, Malaysia, China, Australia, Mexico and Mercosur.
In reality, it is highly likely that any new FTAs negotiated by the UK will simply cut and paste EU tariffs and technical /quality standards as global states and manufacturers will want a small market like the UK to fall in line with its much larger neighbour. It is too expensive for suppliers to operate different production lines or marketing get-ups for a small market that is 1/10th the size of the EU.
We will still have to accept state aid and competition rules and, importantly, incoming migration, as a condition of agreeing those FTAs with those countries. What is more, if the UK sought to agree lower environmental and quality standards as part of those FTAs or chose to lower its own standards domestically, that would prevent it from trading with its largest market, the EU. The EU currently represents over 55% of our foreign exports market.
The Political Declaration will, in effect, set the baseline and mean that all UK exports will have to comply with the EU rulebook. So that brave new world of global self-determination is nothing more than an illusion.
Collateral Damage
In pursuing the Red Lines at all costs, Mrs May’s Deal turns a blind eye to potential collateral damage (whether known or unknown).
Business cannot afford to wait for the depths of present uncertainty to be resolved, so movement out of the UK to EU member states is already happening (Bloomberg), and incoming investment is being scaled back (Reuters).
Importantly, there will be wide-scale loss of individual rights – that is not just pan-European passporting or mutual recognition rights (such as the right to live and work as a teacher or nurse in other countries) but individual rights that apply here in the UK.
EU law gives UK citizens rights that can be directly enforced against their own government so we can strike out state measures that undermine our rights and seek damages from the relevant Government Department.
We can enforce our EU rights against businesses or individuals here as well as against those based in other European countries. So, we can insist on free mobile roaming charges, compensation for airline delays, the 14 day cooling off period for retail purchases; we can strike out unfair terms in contracts and demand compensation for injuries caused in road traffic accidents (even if the driver is uninsured).
We have the right to download Swedish TV programmes or receive medical treatment free of charge abroad if the drugs or technology is not available here in the UK.
If prices are lower for certain goods in other European countries, compared to the here in the UK, we can simply order them online and cannot be charged higher prices or blocked out from the website just because we live in the UK. The ability of UK consumers to insist on and enforce those rights after March 29 will be severely cut back.
Time for bravery and making hard but realistic choices
With just days in Parliament left before exit day set for 29th March 2019 – at the time of writing, not much more than 45 days to potentially undo 45 years of history – it is time for the testosterone-fuelled grandstanding and acrimonious language to end. It is becoming increasingly obvious that cool-headed trade-offs and compromises will be necessary if there is to be any resolution of the Brexit process.
Mrs May’s Deal treats each of the Red Lines as being of equal importance and assumes they take priority over all other considerations. For example, it regards “removing the jurisdiction of the CJEU” as being of equal weight to the economy and jobs. Likewise, equal emphasis has been placed on signing Free Trade Agreements (FTAs) with countries around the world, regardless of how likely the prospects of successful negotiations might be or what difference their contents make in terms of volumes of trade.
I would suggest that it is time to reflect on reality and ask honestly whether all of this what people want or thought they were voting for? What does the ordinary person care more about – their job and their costs of living or the fact that legal rulings come from an international court? Is that criterion all-consuming when it is inevitable, in multinational trade relations, that there must be an independent supranational arbiter to judge any disputes in the international arena? Do people really care whether disputes are resolved by the CJEU or the EFTA Court, the WTO or an Arbitral Tribunal?
Do they really have any interest in whether a FTA is signed by the EU or the UK when the terms are likely to be the same anyway? Aren’t they more concerned about choice, product quality and price?
I would suggest that what is of paramount importance to Britain’s future are the opportunities and life choices that British citizens and their family members can make. What job security and prospects do they have, what new skills can they learn in future, what range of experiences can they enjoy and grow from? What is their quality of life, their comfort and ability to buy life essentials? How much spending money do they have left in their pocket once the bills are paid?
Shouldn’t the main political focus be on pressing issues that affect all of our lives – on the way state finances are spent in the local community and for the wider public good? How much money is there in the public purse to support the NHS, schools, prisons, public transport, poverty, knife crime and mental health? How do we cure regional inequalities that have nothing to do with EU membership but are being exacerbated by the Brexit distraction? There is no “magic money tree” and much-needed public money is being lost or wasted down the Brexit drain.
We need to weigh the pros and cons – it is time to make hard but realistic choices between protecting our personal identity or our economy, stopping EU immigration or enjoying the benefits of our visa-free travel in Europe; leaving the European Union or preserving our own United Kingdom union; promoting our island’s independence or maintaining our global leadership and influence through international dialogue and cooperation; preserving our trusted global reputation or the memory of our glorious past?
We may trumpet our national independence and perceived unlimited freedom to do new things after March 30 2019. But what exactly are the brave new things that we couldn’t do before because of our EU membership?
The day of reckoning draws ever closer…and we, the People, may be called upon to determine what values and priorities we consider the most important. What does your Brexit look like? I leave you with this one question – what sort of society do you want to live in and leave as a legacy for future generations?
This blog is by a barrister specialising in EU law, competition & consumer disputes, regulatory challenges, WTO/international trade