The proposed Withdrawal Agreement is unlawful

by Jo Maugham QC

The proposed Withdrawal Agreement is unlawful

by Jo Maugham QC
Jo Maugham QC
Case Owner
I am the founder and director of the Good Law Project.
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on 16th October 2019
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Jo Maugham QC
Case Owner
I am the founder and director of the Good Law Project.

Latest: Nov. 16, 2019

The Claim Will Continue

The case in Scotland to establish that Boris Johnson’s Withdrawal Agreement is unlawful will continue.

Last month I brought proceedings in Scotland to establish that the proposed Withdrawal Ag...

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Section 55 of the Taxation (Cross-border Trade) Act 2018 states that:

"It shall be unlawful for Her Majesty’s Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain."

A briefing paper for that Act set out a statement from Laurence Robertson MP that the purpose of the clause was to:

"[P]rovide a guarantee that shows we value the Union and recognise the importance of strengthening it, but also acknowledge the importance and the value of our most important trading arrangement, the UK internal market. Above all, it would contribute to upholding the constitutional integrity of the United Kingdom and safeguard the Union for the future."

I believe that the proposed Withdrawal Agreement - which contains special customs arrangements for Northern Ireland - is contrary to section 55. Unless and until Section 55 is repealed by the UK Parliament it is simply not open, as a matter of law, for the United Kingdom to enter into such an agreement.

I intend to launch an immediate petition for an injunction in the Court of Session preventing the Government from placing the Withdrawal Agreement before Parliament for approval. We expect that petition to be lodged tomorrow and heard on Friday. 

The legal team is Aidan O'Neill QC, George Peretz QC instructed by Elaine Motion of Balfour + Manson. 

90% of sums raised will be used to fund this litigation. The remaining 10% will go to support the core costs of the Good Law Project. Jo Maugham QC will not take a single penny from the crowdfunding. 

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Update 3

Jo Maugham QC

Nov. 16, 2019

The Claim Will Continue

The case in Scotland to establish that Boris Johnson’s Withdrawal Agreement is unlawful will continue.

Last month I brought proceedings in Scotland to establish that the proposed Withdrawal Agreement is unlawful. Section 55 of the Taxation (Cross-border Trade) Act 2018 makes it unlawful for the Government to “enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.”

The background to section 55 is set out in this briefing paper prepared by the House of Lords library. The basis for section 55, described by Mel Stride MP, then Financial Secretary to the Treasury, as a “straightforward statement of government policy” was that the Government was “committed to protecting the constitutional integrity of the United Kingdom.”

At a hastily convened hearing for interim relief in October the Judge said he did not believe we had an arguable case. However, we have commissioned evidence from Professor Alan Winters, Director of the UK Trade Policy Observatory, which supports our position. That evidence can be read here. Notably it says that a remarkable 75% of Northern Ireland's imports will be subject to EU customs duties.

Of course, if the Conservative Party wins the General Election, it can and probably will ask Parliament to repeal section 55. And if Parliament does repeal section 55 it will no longer represent a legislative bar to the Withdrawal Agreement. But in the meantime there seems to me to be an important principle at stake.

If the United Kingdom leaves the European Union we will, for the first time in decades, make our own trade policy. That trade policy is likely to have profoundly important consequences for the country – consumer protection, the shape of the NHS, the viability of sectors of our economy – and so on. It seems to me important to establish that Government respects Parliament’s primacy when it comes to shaping trade policy. So if, for example, Parliament legislated that the Government ‘shall not negotiate lower food standards’ it would be unlawful for Government to negotiate a trade deal that permitted the importation of hormone-fed beef.

These are matters, it seems to me, which Parliament must be able to control. And I am continuing this case to secure that it can.

Update 2

Jo Maugham QC

Oct. 17, 2019

Our petition

Update 1

Jo Maugham QC

Oct. 17, 2019

An update

Here we are, after three and a half years, and it looks as though Parliament will be asked to approve on Sat a 500+ page document which it has not seen (indeed which does not yet exist) with epochal consequences for Great Britain, Northern Ireland and the EU and in short time.

What - beyond Boris Johnson's desire to meet his self-imposed deadline - is the rush? It would be in the interests of our Parliament to have more time to consider it - and it may well also be in the interests of the EU27 Member States.

The Benn Act requires (to avoid an application for an extension) both that there be (1) a concluded agreement placed before Parliament and (2) that it be a lawful agreement (including not being contrary section 55 of the 2018 Trade Act).

Moreover, in the 2018 Withdrawal Act, Parliament set out what it wanted by way of proper governance of the process of leaving the EU including scrutiny of the withdrawal agreement, and then an Implementation Act, with proper time for reflection by both Houses.

There is also a very important point going forward. The Government's position is that Parliament will have no say on future trade deals - including those affecting the NHS (https://scramnews.com/mps-will-not-have-say-post-brexit-trade-deals-liz-truss/). That should cause deep alarm to all of us.

There is a legal fix - Parliament might set legally binding negotiating parameters that Govt shall not (for example) lower food standards. But that is exactly what Parliament did with section 55 - and this Government (in effect) has ignored them.

Returning to this case, if the Governments wants to seek Parliament's consent to repeal section 55, it can and should seek that consent. But it must not negotiate unlawful trade deals and then present them to Parliament as a fait accompli.

The right sequence, then, is for Government to ask for an extension as mandated by the Benn Act to give Parliament proper time to consider the terms of any Withdrawal Agreement and to seek Parliament's consent for this Withdrawal Agreement through a repeal of section 55.

We will be asking the Government to undertake that it will meet its legal obligations by (1) not presenting mere heads of terms for Benn Act approval on Saturday and (2) not presenting an unlawful Withdrawal Agreement to Parliament. 

If we receive those undertakings we will take no further action. But if we don't receive those undertakings we will ask the Court to secure Government observes them.

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