Martin Howe on the Boris deal

Is Boris Johnson’s deal with the EU BRexit In Name Only? What kind of exit from the EU will a Tory party with an overall majority deliver? Important questions for anyone struggling to decide whether to vote Conservative to just leave already, or vote Brexit Party to send a message that we want as much Brexit as possible.

Martin Howe is a Queen’s Counsel and so likely to understand the deal as well as anyone. He was against Theresa May’s deal because it bound the UK into a transition period (backstop) until the EU decided otherwise. He is in favour of Boris Johnson’s deal.

According to him, the deal looks a lot better than I had previously thought:

it foreshadows a Free Trade Agreement under which the UK will be able to operate its independent trade policy, instead of the UK being locked into the EU’s external customs tariffs…references in the PD to the UK aligning its rules to EU rules have been deleted…commitment to shadow the EU rules on competition and state aids in Theresa May’s WA has been replaced with a more open ended commitment not to distort competition [similar to that seen in most FTAs, according to the Telegraph version of the article]…explicitly making clear the right of the UK to determine how it would respond to any invitation by the EU to participate in joint action in the defence field

None of these things you would learn from reading comments on Guido…

Howe is honest enough to detail the bad stuff.

the long term subjection of the UK to rulings by the ECJ…the so-called transition period [during which] the UK would be subject to all EU laws, both those that exist now and those that are brought in during that period…financial obligations on the UK which go well beyond the UK’s obligations under international law

Overall, Howe thinks this is much better than Theresa May’s unacceptable deal, is not BRINO, but is worse than leaving with no deal. The question then becomes: is it still possible to leave with no deal?

Updated: 7th November 2019 — 9:47 am


  1. It’s not very clear to me just how bad the bad things in the deal/treaty are. The Bow Group and the Bruges Group have both come out against it. It’s all a bit murky. We need some more detailed analysis from knowledgable people. A few paragraphs from martin Howe are not enough.

    The thing is, though (as I blogged recently), why do we still need this deal when the Remainer Parliament will be gone? Many people, even hard Brexiteers like James Delingpole, were saying that this is the best we can get with a Remainer Parliament in charge, so in that context we have to take it. But if the Conservatives (or the Conservatives in conjunction with the Brexit Party) win a majority then why can’t we modify the deal, or just leave with WTO if the EU says no?

    Of course we may get another Remainer Parliament, but assuming we don’t, what’s stopping us changing the deal again? Even if it’s just to change the role of the ECJ?

    The main thing stopping us doing that that I can see is is Boris Johnson and his government, who want their deal, and who are — as I’ve said all along — frightened of no deal.

  2. Martin Howe QC: “So 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.

    First, Prof Paz — thanks for the link to Howe’s piece. It is good to see a balanced assessment of the revised deal from someone who has studied it seriously.

    As Howe says, it is a political judgement whether the deal is acceptable — and it is fairly clear that, if Howe got his druthers, he would toss it out and renegotiate. A challenge with the political judgement is that it has to be made in a world in which it is now clear that hard-line Brexiteers are less numerous than they once thought, and that the British public is beginning to suffer from Brexit-fatigue.

    Howe’s analysis implies that the United Kingdom will be less United after passage of this deal, with Northern Ireland as a somewhat separate entity. On the other hand, and separate from Brexit, some analysts have predicted that Northern Ireland would anyway chose to bid farewell to London and join Dublin within about a decade, because of ongoing political & demographic trends in both Ireland and Northern Ireland. So perhaps the Agreement’s small step towards a break-up of the current UK is acceptable.

    As a foreigner, I am still puzzled by the likes of Howe’s statements about “regaining our freedom”. Freedom to do what, in such a deeply inter-dependent world? Especially since it seems that most of the concerns of the UK public are about strictly internal things like the NHS.

  3. Freedom to buy the kettle of my choice rather than one that was decided on for me by unelected imbeciles who are ignorant of primary school level science.

  4. “Freedom to buy the kettle of my choice …”

    There are many good reasons for overthrowing an empire like the EU — but kettle design sounds a little like a Swiftian war over which end of the boiled egg to open.

    Do not suffer! Many international internet vendors will ship the kettle of your choice to the UK. That is assuming home-grown UK bureaucrats don’t stomp on your parcel. Letting drugs in is one thing, but unauthorized kettles? No way!

  5. You’re missing the point Gavin. The kettle thing is a microcosm of the whole rotten edifice. People who I didn’t vote into office are making decisions that affect my life. If I disagree with such decisions, I have no recourse, there is no appeal and I cannot remove them from office. In this particular case I have a cast iron reason to disagree with them. The reason for imposing low powered kettles on us is that it will save energy. It won’t save energy and anyone who doesn’t know that isn’t qualified to make such decisions by definition. But within the EU, lack of competence isn’t a barrier to high office.

  6. And neither is a failure to convince an electorate of your ability to wield high office. And it should.

    Interconnected is no reason to abandon all but a veneer of democracy to give a bureaucrat an easier job and less bribe resistance.

  7. Stonyground: “People who I didn’t vote into office are making decisions that affect my life. If I disagree with such decisions, I have no recourse, there is no appeal and I cannot remove them from office.”

    I sympathize! Now you know how many of your American brethren felt during the Obama years. 🙂

    Seriously, exactly the same busybody regulation was happening before the UK joined the EU, and will continue to happen after the UK has separated from the EU. Bureaucrats put regulations in place with little oversight from elected officials — and those elected officials are mostly not at risk of being voted out of office, even over things a lot more significant than kettle design. In the US, more “Representatives” leave office through death than through the votes of disgruntled citizens.

    Most Western democracies need fundamental structural reform. Brexit alone is not going to come close to achieving the reforms needed to stop distant bureaucrats interfering in your life. A boot in the face is a boot in the face, whether the wearer of that boot resides in Brussels or London.

  8. It is in the nature of any deal that you’re not going to get everything you want. You only bother to negotiate a deal when seeking a mutually beneficial compromise between partially conflicting interests.

    On the negatives Howe raised, I don’t see how any alternative was realistic. The interpretation of EU law applies to all of Europe. They’re not going to accept the jurisdiction of a foreign court over their own law, either. So to the extent we agree to abide by ‘EU law’, the EU gets to say what that law is. If you don’t like that, the only reasonable alternative is to not agree to abide by it – and there are a wide range of derogations from EU law in the treaty.

    The transition period is just a bridging arrangement during the negotiations, until you know what it is you’re going to agree. If you want to be able to offer them X in return for Y, it’s going to be hard to do if you’ve already given away X in some deal with someone else. If we hadn’t wasted a lot of the last three years, we’d already be near the end of the bridge.

    The £39bn has great political symbolism, but it’s about 5% of one year’s government revenue – as a one off payment, it’s of no consequence. Also, much of it is to pay UK citizens who have worked for the EU and have pensions due. Although it’s tempting in the case of the UK contingent of EU bureaucrats and politicians, there is considerable merit to honouring our commitments, especially to our own citizens. I’ve seen it said that the actual sum will very likely be less than £39bn, because that number was calculated on the basis of leaving last March, and because of the delays we’ve still been paying in since then. But I don’t know.

    And on Northern Ireland, I’ve already said elsewhere that was always going to be a tough problem to solve. The current proposal is an inspired solution to an impossible problem. It’s not perfect, but perfect isn’t possible.

    For me, the biggest problem with the Withdrawal Treaty is that there’s no exit clause – unlike virtually every other international treaty the EU or anyone else has ever signed. It’s nearly impossible in international law to unilaterally get out of a treaty with no exit clause. It binds the hands of future Parliaments. While there are plenty of exceptions and derogations from bits of EU law we don’t want to be bound by, and it’s probably the case that the rest is stuff the Tories are currently happy to be bound by, it’s very hard to be sure that there isn’t some buried trap in the 500+ pages of legalese that we only find out about in the future, and if so, we would need EU assent to change it. Of course, putting in an overarching exit clause would nullify their promise to the Irish not to ever allow a hard border under any circumstances, so I can certainly understand why the EU wouldn’t back down on that. But there’s other stuff mentioned in passing in there (like the Paris Climate Change Treaty) that are currently fashionable in Westminster, but which a future government might want the freedom to take a different path on, and which I don’t see any current political need to make unalterable commitments on. Always, always, always have a desperate last-resort in-case-of-emergency exit clause.

  9. More important than a future government, a good chunk of the current and an unknown chunk of the future electorate might want to exercise democracy in a fashion that doesn’t fit this. It’s ever-growing socialism until death camp induced collapse.

  10. The deal can have play various roles at various times.

    Boris negotiated his deal in a specific context – a parliament who pretended they just didn’t want to leave without a deal whom he needed to expose as not intending to leave under any circumstances, and whose consent to an election he needed to extract.

    Having got his election, Boris wants to maximise his votes. His key votes are in being Mr Brexit, of course. But there are votes in reassuring doubters. With the promise of a deal, all the Project Fear stuff goes up in smoke as far as the ordinary punter is concerned. So Boris wants to exploit that as far as is safe. While the polls tell him he can keep enough Brexit voters without denying his deal, then he will not deny his deal during the campaign.

    The election will give Boris a majority that lets him do what he wants – or will leave him still constrained. (Ideally, the only constraint will be Brexit MPs in the seats of former Labourites, LibDems and/or Tory Remainers, but other outcomes are possible.)

    If Boris can do what he wants, he can return to the EUrocrats with that stronger negotiating position. (That doesn’t guarantee he will, of course. I merely note it seems like he’d be smart to IMNSHO) His enemies have given such strong precedents for not fulfilling very precise election promises concerning Brexit that the SW1 bubble would be utterly hypocritical (not that that would stop them, but they would have no influence) if they claimed that renegotiation, with the threat of no-deal leaving, was not word-perfect in accord with what was implied on the election trail.

    We’ll see. Meanwhile the Brexit party should contest gross Tory remainer seats – May’s for example – for credibility with former Labour voters, but should avoid harming Tory leavers.

  11. Itellyounothing: “It’s ever-growing socialism until death camp induced collapse.”

    Agreed, in universal suffrage democracies, we are getting the government we deserve — good and hard. There was a recent poll where about one third of Californians said they wanted to leave their decaying socialist state. The astonishing thing is that two thirds still want to stay there! It seems that many of us frogs are studiously ignoring the rising water temperature.

    Collapse is coming — because of the global inability of politicians to live within their means (a topic which is not even on the political radar in most places). Just look at Boris the Unreliable’s expansive additional spending promises. Of course Boris never intends to fulfill those promises (what an earlier generation of Tories would have called “lying”), but it is clear that the tribe will dutifully file into the polls and the UK — like so many other countries — will continue to live beyond its means, until the debt bomb explodes.

    But be of good cheer! The inability to pay its bills is basically what brought the Soviet Union down. The immediate aftermath was very unpleasant, but today Russia, Kazakhstan, and the rest are much more pleasant places to live. There is (long-term) hope!

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