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Getting a Hard Brexit Done -Towards a New Final Destination

With barely two weeks to go to a crunch European summit, the UK Prime Minister Boris Johnson has made his pitch for a revised Irish ‘backstop’ and a new Political Declaration on the future relationship between the EU and the UK. Not surprisingly given that what has been released deals solely with the backstop, the question that journalists have focused upon is whether the idea of an all-Ireland regulatory zone and customs controls away from the North-South border can get a green light from the EU and from the MPs who will need to back the deal.

Under the pressure of time, political and media attention cannot help but be consumed with the here and now. Yet what is fundamentally at stake in all of this is not just what it takes to “Get Brexit Done” but where the UK and the EU are heading in terms of their future relationship. As Jill Rutter has tweeted, what is really significant about Boris Johnson’s letter to departing European Commission President Jean-Claude Juncker is that the softer form of Brexit envisaged by Theresa May – and rejected not just by her own MPs but also Opposition parties – is not what the Johnson Government wants. The shape of Brexit has altered and altered radically from a year ago.

On this blog last year, I suggested that what might be important about the planned backstop was that it was less a safety net and more of a trampoline towards a particular kind of future EU-UK relationship. Indeed, the terms of the Political Declaration implied that a future relationship would build upon a backstop that would keep the whole of the UK and not just Northern Ireland subject to EU rules including “level playing field” regulatory compliance.  Had the Withdrawal Agreement and Political Declaration been approved, the shape of Brexit could have been relatively soft (although a change of government in the UK could, of course, have charted an alternative course). Albeit different from the approach of the European Economic Area Agreement – aka the “Norway model” – a novel and potentially far-reaching type of “association agreement” between the EU and the UK seemed to be on the cards.

The Prime Minister’s new proposal is not just for a revised backstop but for a very different type of future relationship. This had already become clear when the newly appointed Prime Minister Johnson wrote to the European Council President on 19 August. As well as making the now-familiar claim that the backstop was “undemocratic’, the Prime Minister went on that the backstop was “inconsistent with the UK’s desired final destination for a sustainable future relationship with the EU”. In express terms, the Prime Minister stated that UK regulations could in the future diverge from those of the EU; “[T]hat is the point of our exit and our ability to enable this is central to our future democracy”, he said.

In the more recent letter to Jean-Claude Juncker, the abandonment of any type of association agreement in favour of a free trade agreement is made clear and the reasoning that lies behind it is so “that the UK takes control of its own regulatory affairs and trade policy”.

What emerges is a rather interesting picture. The UK will leave the Customs Union and the Single Market and base its future relationship on a free trade agreement. This is a hard Brexit with no pre-commitment to EU regulatory standards underpinned by an agreement with the EU. Which is not to say that other forces will not push towards regulatory convergence: voluntary alignment or the pressure from market actors will have a role to play. But the free movement discipline of pre-committed regulatory alignment will be replaced by a looser free trade discipline that will open a space for regulatory divergence. The exception to this is Northern Ireland. Rather than the backstop acting as a trampoline or trap, it will be an anomaly. The Prime Minister intends that this anomaly – something which the Democratic Unionist Party had apparently sets its face against hence the May version of the backstop – will find its justification in the principle of consent and the willingness of the people of Northern Ireland to accept continuing regulatory alignment in trade in goods. Which begs the question of how consent in the rest of the UK is to be secured for potential regulatory divergence in the future.

It remains to be seen whether the Prime Minister can persuade the leaders of the EU27 to back his plan. But even if they do, can the same MPs who didn’t support Theresa May’s softer Brexit really get behind the harder Brexit that the Prime Minister is clearly pursuing?

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Decision Time – Why Opposition Parties Need to Agree a ‘Brexit Manifesto’

In the Introduction to my book Brexit Time, I observed that Brexit was not the United Kingdom’s ‘manifest destiny’. Rather it was a choice. And it remains a choice.

We have now reached the point where decisive choices can and need to be made. The options are clear. Under the Johnson Government, the option of No Deal Brexit is actively being pursued. For the opposition parties the options are either for the UK to remain in the European Union or to exit on terms that will see the UK maintain a close alignment and cooperation with the EU.

These are not new options. What is new is that there is now a clear path towards finally making a decision.

The first step is to force the Conservative Government to seek a mandate for a No Deal Brexit through a General Election. That means preventing the Prime Minister from either proroguing Parliament or choosing the date of a General Election beyond the 31 October deadline after which the UK would automatically crash out of the EU.

Before a General Election can take place, MPs will have to pass a motion of no confidence in Boris Johnson’s Government AND form a unity government. Although there has been speculation and controversy over who might lead that unity government, what is more important is what steps it puts in place for a General Election that would allow the electorate to either back a Conservative No Deal Brexit, or pave the way for the other two options – Remain or a softer Brexit – to be tested.

In order for there to be General Election before the UK automatically leaves the EU on 31 October, a further extension to the Article 50 process might well be needed. Nonetheless, for yet another extension to be granted – the third such extension – the EU will want to know that a General Election is likely to produce more rather than less certainty. That means that opposition parties need to agree not just a unity government to take control over the process, but a unity position on the substantive alternatives to a No Deal Brexit.

This is why I think the opposition parties need to come up with a common ‘Brexit manifesto’ to contest a General Election. This would not, of course, replace the party manifestos; after all, a General Election would be about more than just Brexit. But when it comes to outlining the party positions on Brexit, the opposition parties need to agree a common platform.

The difficulty for the opposition parties is the split between those for whom the only viable option is for the UK to remain an EU Member State and those for whom a Brexit alternative based on a Withdrawal Agreement, transition and close future relationship with the EU is a credible option.

The Liberal Democrats might want to maintain the clarity of their current pro-Remain position which has seen them make advances in the polls. The problem with that is two fold. For the Lib Dems a simple Revoke-Remain strategy is not going to attract them the votes of Conservatives for whom Brexit is still their preference but not a No Deal Brexit. Unless they are prepared to accept a compromise position – and with it being highly unlikely that traditional Conservative voters would switch instead to a Corbyn-led Labour Party – those Conservative Leave voters may feel they have no alternative to backing a No Deal Conservative Party under Boris Johnson. For the Labour Party, MPs in Leave-voting constituencies are unlikely to get behind a Brexit manifesto that simply gives voters a choice between a No Deal Brexit or a Revoke-Remain alternative.

My proposal is that the opposition parties unite around offering voters a second step in the form of a referendum with a straight choice between Remain and a Brexit that would keep the UK in the Single Market and a partner with the EU on other forms of cooperation including security. The option of a No Deal Brexit would not need to be put in a referendum because the preceding General Election would either have seen that option accepted – with a Johnson government having a fresh mandate – or it would have been rejected.

This approach allows the key choices to be made. If Boris Johnson wins a General Election he will have a mandate to pursue his preferred form of Brexit. If he loses and either one of the opposition parties has a majority or some type of coalition is formed, the new government would be committed to giving voters a final choice between staying in the EU or leaving the EU but under different terms. Voters would know that this alternative to a No Deal would be on offer regardless of which opposition party they voted for.

It is clear that Labour is backing a strategy of a General Election followed by a referendum. It is imperative that this becomes a shared strategy of the opposition parties.

For this strategy to be viable there does need to be greater clarity and agreement about what a credible alternative Leave option might look like. My own view is that an EEA model is a credible alternative in securing continuing access to the Single Market. It would eliminate customs duties between the UK and the EU and maintain regulatory alignment not just at the point of departure but over time. There are understandable grounds for reticence about the EEA Agreement given that it is almost thirty years old. It would be helpful if the incoming European Commission could signal its willingness to review the operation of the EEA Agreement and how it might be adjusted in light of developments in the last three decades and as the EU reflects on its own future institutional architecture and relations with its near neighbours.

The challenge for the opposition parties would be to approve a Withdrawal Agreement that they have otherwise opposed. The basis for a change of position would be a very different vision of the future for the UK as a whole and a credible alternative to the backstop underpinned by the principle of consent.

Under the Withdrawal Agreement, the UK would enter into a transition period ending on 31 December 2020 or later if it is extended. It is conceivable that an EEA-type future relationship could be ready to commence on 1 January 2021 or a year or two later if a deeper review of the EEA approach was to be undertaken.

During the transition period, Northern Ireland would be in the same position as the rest of the UK with EU customs and Single Market rules applicable during the transition period. Thereafter, an EEA-style agreement would avoid the need for frontier regulatory controls on the island of Ireland but as the EEA Agreement does not create a Customs Union a different approach would need to be considered to secure the avoidance of a hard border. To that end, the UK and the EU should commit to negotiating an agreement to replace the ‘backstop’ under the Withdrawal Agreement to keep Northern Ireland within EU customs arrangements (in addition to its participation in the Single Market through an EEA-style agreement). This new agreement should be the subject of a referendum in Northern Ireland, thereby ensuring that the Good Friday Agreement principle of consent would apply to any difference in approach between Northern Ireland and the rest of the UK. To avoid the Withdrawal Agreement backstop provisions being triggered, this new agreement and a referendum to approve it would need to be in place during the transition period.

All of which will require strong signals from the EU as to its willingness not just to pursue this alternative Brexit but also to implement the steps necessary to ensure that a transition will be successful. This will entail revisiting and revising the text of the Political Declaration to reflect different Brexit priorities. My own view as expressed in an earlier outline proposal is that an ‘Implementation Protocol’ to be added to the Withdrawal Agreement would give confidence as to the commitment of the EU and the UK to move from the status quo to a new set of arrangements.

It is only by offering a credible alternative Brexit that a future referendum choice between Remain and Leave can legitimately respect the interests of voters. Leave voters will have the opportunity in a General Election to vote for No Deal if that’s what they want and again to vote for a different type of Brexit – or indeed to Remain – if Boris Johnson is unable to form a government after an election. Remain voters will know that whatever opposition parties they vote for, the option of remaining in the EU will be put to them in a future referendum alongside a compromise Brexit which they might not want but which would be preferable to a No Deal Brexit.

A General Election is the legitimate way to approve or reject a No Deal Brexit. And if it is rejected, it is only right that voters can choose between remaining in the EU or leaving with a credible alternative Brexit.

Finally, choices can be made that will be both decisive and legitimate.

 

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The Legal Clarifications to the Withdrawal Agreement – White Smoke or Smoke and Mirrors?

On 11 March, the European Union and the United Kingdom announced that agreement had been reached on the legal clarifications sought by the United Kingdom with the hope that these might be enough to ensure backing by MPs. These clarifications are found in two joint texts – an “Instrument” relating to the application of the Withdrawal Agreement and a “joint statement” supplementing the Political Declaration – and a unilateral declarationmade by the UK Government. It is on the basis of these clarifications that the UK Government has indicated to Parliament that political agreement has been reached and MPs are due to vote on 12 March on a motion to approve the texts of the Withdrawal Agreement and Political Declaration as is required under section 13 of the European Union (Withdrawal) Act 2018.

The Legal Status of the Clarifications

The main text simply describes itself as an “instrument”. We tend to think of instruments as a generic description rather than identifying a specific type of instrument e.g. a treaty, a protocol, a decision. The instrument itself states that it is an instrument for the purposes of Article 31 of the Vienna Convention on the Law of Treatiesmeaning that it is an instrument “which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty”. The legal value of this is that when it comes to interpreting the objects and purposes of any treaty or agreement –  the central legal interpretative exercise – such an instrument is to be used to identify and define the purpose of the agreement. In other words, the joint instrument agreed between the Union and the UK is a legal instrument that reflects a common understanding of the purposes of provisions of the Withdrawal Agreement including the Protocol on Ireland/Northern Ireland.

The joint statement on the Political Declaration similarly attempts to clarify how aspects of the Political Declaration will be taken forward and underscores the relationship between the Withdrawal Agreement and the Political Declaration. Nonetheless, its legal status is no higher than that of the Political Declaration itself. The Declaration and the supplementary text identify political commitments and political intentions in instruments which are not of themselves binding legal texts.

The declaration by the UK Government sets out its understanding of the objective of the backstop. It is unilateral in nature and in consequence it cannot create obligations for the EU unless the Union acts in a manner which indicates that it considers itself bound by the declaration. Rather, it is a text that defines the legal position of the UK in respect of how it would act were it to consider that the backstop had become permanent contrary to its objective.

The Legal Effects Created

Far more important than the legal status of the texts is the legal effects that they are intended to create. In respect of the backstop, the key issues relate to how to avoid the backstop being triggered in the first place and how to exit the backstop were it to come into effect if no agreement could be reached to replace it.

Article 2(1) of the Protocol on Ireland/Northern Ireland states:

The Union and the United Kingdom shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part.

In other words, by the end of the transition period – during which time the whole of the UK will remain bound by EU law obligations – it is the aim of the Union and the UK to have in place an agreement that will prevent the backstop being triggered. In view of this – together with the general “good faith” obligation contained in Article 5 of the Withdrawal Agreement – the joint instrument sets out the commitments the parties are making with regard to the negotiations on subsequent agreements that will supersede the backstop. These steps include:

  • Preparatory work on the future negotiations as soon as the Withdrawal Agreement is signed (para 6)
  • A distinct negotiating track to replace the customs and regulatory alignment aspects of the Protocol through “alternative arrangements” including existing and future “facilitative arrangements and technology” (para 7, and para 6 of the supplementary joint statement)
  • A capacity for the distinct negotiating track to give rise to either a separate agreement or to form part of the overall future relationship. A separate agreement could become applicable and replace the relevant parts of the backstop even if the future relationship had not been agreed, and could be given provisional application pending ratification (paras 10 and 11)
  • Regular monitoring of the progress of the negotiations with high level conferences convened every six months (para 8) or at the request of the parties to address substantive obstacles that might risk or delay progress (para 9).

These are the sorts of steps I identified as being essential to the implementation of the commitments made in the Withdrawal Agreement and the Political Declaration in my proposal for an “Implementation Protocol”. They are intended to ensure that negotiations are on track to deliver outcomes before the end of the transition period.

The more contentious aspects relate to what happens if the backstop is deployed and there are problems with agreeing texts to replace the backstop. In his original legal advice, the Attorney General Geoffrey Cox highlighted that the backstop would endure unless and until replaced by a subsequent agreement. Although the parties did not intend the backstop to be permanent, if there was no way out of it, then it would endure. He highlighted that if a dispute about the backstop went to the Arbitration Panel established under the Withdrawal Agreement, the remedies available before the Panel did not include termination of the backstop. Instead the remedy that might be available would be to suspend the operation of part of the Agreement with a view to bringing the other side back to the negotiating table (para 28 of the AG’s advice).

The joint instrument aims to clarify that if either the UK or the Union act “with the objective of applying the [backstop] Protocol indefinitely” contrary to the good faith obligation contained in Article 5 of the Withdrawal Agreement and the best endeavours obligation in Article 2(1) of the Protocol, then the Joint Committee established under the Withdrawal Agreement is to be immediately brought into action with a view to resolving the dispute. If the dispute is escalated to an Arbitration Panel established under the Agreement, it can determine if one side is acting with the objective of applying the Protocol indefinitely. The joint instrument notes that a “persistent failure” to comply with its obligations could give rise to “temporary remedies” against the offending party. However, the key message it contains is that ultimately the aggrieved party could unilaterally enacts of proportionate suspension of its obligations under the Withdrawal Agreement – apart from the citizens’ rights provisions – “unless and until” compliance with the ruling of the Arbitration Panel is ensured (para 14).

In this way – and without termination of the agreement – the UK could unilaterally suspend its obligatons under the Withdrawal Agreement, but only once an Arbitration Panel had concluded that the Union was breaching its good faith and best endeavours obligations as regards the negotiation of an agreement to supersede the backstop, and only if there was a “persistent failure” to comply.

This presents a two-fold difficulty.

The first point is that the effect of this instrument is limited to only one type of breach – acting with the objective of making the backstop indefinite contrary to the obligations of good faith and best endeavours in the conduct fo negotiations – rather than any other disagreement between the two sides. Yet, it is perfectly possible that both sides and in good faith have very different understandings of a problem that is preventing them from reaching an agreement. Indeed, the difficulties with the negotiations thus far may point to that very fact. In legal terms, neither side has complained that the other is acting in bad faith even when they have clashed over what might be needed to avoid a hard border on the island of Ireland. This may mean that an Arbitration Panel could conclude that a dispute between the parties simply did not give rise to a breach of the good faith or best endeavours  obligations.

Of course, this would not prevent other types of dispute coming before the Arbitration Panel. Indeed a dispute could arise as to the operation of the review mechanism in Article 20 of the Protocol on Ireland/Northern Ireland which aims to determine when the backstop should cease to apply. But in placing all the emphasis on an exceptional breach of the good faith and best endeavours obligations, an opportunity has been missed to clarify how the Article 20 review mechanism might ordinarily be applied. In my proposal for an “Implementation Protocol” I suggested that the Joint Committee establish an “assessment framework” to help with the review mechanism, with oversight from the Arbitration Panel.

The second difficulty is the very open nature of the good faith and best endeavours obligations. As normative standards they are open to different interpretations and an Arbitration Panel might demand a high standard of proof to show that they had been breached.

The UK’s unilateral declaration is intended to shed some further light on this. It sets out the UK’s understanding that a breach of the good faith requirement preventing the conclusion of an agreement to supersede the Protocol would entitle it to consider that the Protocol was no longer temporary, and that nothing in the Agreement would “prevent it from instigating measures that could ultimately lead to disapplication of obligations under the Protocol”. This would seem to repeat para 14 of the Joint Instrument rather than adding anything to it. Indeed, it is clear that the outcome of the disapplication of obligations would have to follow the process to which the UK is legally bound under the Withdrawal Agreement, namely seeking a political resolution within the Joint Committee and a referral to an Arbitration Panel if there is no resolution. All of which takes us back to the difficulty in determining a breach of the good faith and best endeavours obligation in the first place.

In conclusion, the clarifications that have been produced are contained in documents with a legal status intended to produce legal effects. Insofar as those effects are aimed at de-risking failures in the political negotiations on the future relationship they are a step in the right direction, although my proposal for an “Implementation Protocol”goes further, not least by giving parliaments a greater oversight over future negotiations. In respect of remedies in the event that there are problems in the negotiations, the Union and the UK have put all their eggs in one basket – a breach of the good faith and best endeavours obligations. This may confine disputes and remedies to a narrow corridor of problems that may beset negotiations with the added problem that an Arbitration Panel may demand a great deal before finding a breach of those obligations.

MPs looking for a reason to vote in favour of the Government’s deal may well find enough in this to grasp with both hands. However, those looking for a reason to reject the deal will also find limitations in what has been produced.

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The Cooper-Letwin Article 50 Extension Proposal – How Long For?

Arriving at a summit at Sharm El-Sheikh, the UK Prime Minister has confirmed that this week’s votes in the House of Commons will not include a vote to approve a revised Brexit deal. No ‘deal in the desert’ is set to emerge at this gathering of EU leaders. Instead the so-called ‘meaningful vote’ will likely take place on 12 March a matter of weeks before the United Kingdom’s scheduled departure from the European Union on 29 March 2019.

There may, however, be a vote of some significance if MPs vote on the plan promoted by Yvette Cooper and Oliver Letwin to seek an extension to the Article 50 withdrawal process, pushing back the date of the UK’s departure from the Union.

At the end of January, the House of Commons rejected Cooper’s original amendment that would have extended the Article 50 process to the end of the year. But as time has passed the likelihood of a need to request more time has grown.

With the exception of a ‘No Deal’ Brexit – which MPs rejected when they voted on the ‘Spelman amendment’ in January – any Brexit scenario is now going to need an extension of the Article 50 process.

If MPs had this week been presented with, and backed, a Brexit deal, the legislation to bring that deal into law in the UK – a 100-page European Union (Withdrawal Agreement) Bill – will take time to make its way through the legislative process. This sort of extension is what is sometimes described by the EU as a ‘technical extension’ and would be for a matter of months.

However, with the EU still waiting for clarity from the UK about what sort of deal could command a majority in the House of Commons, a more radical idea has been floatedof forgetting about a technical extension and instead pushing Brexit back to 2021. In essence this would mean abandoning a 2019 Brexit with a transition period to 2020 or 2021 during which a new EU-UK relationship would be worked out.  Instead the UK would remain a Member State while it decided what it really wanted by way of a future relationship with the EU.

A delayed Brexit of this length would avoid the problems of a shorter extension running into the May 2019 elections to the European Parliament. Remaining a Member State would mean that the UK would have to return MEPs in this year’s election notwithstanding that the number of MEPs allocated to the UK have already been redistributed to the other Member States.

Nonetheless, it would also beg the question whether the EU – contrary to the position it has consistently taken – would actually be prepared to negotiate the text of a future relationship without the UK having become a so-called ‘third country’. The key advantage of having a negotiated deal in place at the moment that the UK left the EU would be that it could avoid the need to have an ‘Irish backstop’ as an insurance policy while negotiations on a future deal that would also avoid a hard border were on-going.

While one can see the advantages of a delayed Brexit, it would have profound domestic political consequences.

It would accept that the May Government had failed to produce a plan for the future capable of obtaining a consensus or even a majority within the Commons. If the Prime Minister cannot get a deal over the line with a technical extension to implement it, it’s difficult to see how either she or her government could carry on. Indeed, one might even consider that an extension of Brexit to 2021 would be a pretext for an early election to allow a new government to seek to build a consensus on a different way forward. In that way, it would be a proposal that would play to the Labour leadership’s preference for a general election as a way of unblocking the Brexit deadlock.

Delaying Brexit would create a significant rift in the Conservative Party between those who don’t want any delay to Brexit even if that means a No Deal Brexit, and those who want a softer Brexit or even for the UK to remain in the EU. It would also be a significant boost to Nigel Farage and his Brexit party who would claim that Brexit was being frustrated, creating futher tensions within the other main parties.

For those who want the UK to remain in the EU, the longer the UK remains a Member State, the greater the potential to build momentum around a new referendum and a Remain vote.

It is readily apparent, therefore, that a lengthy extension to UK membership of the EU wouldn’t merely create an opportunity to define a vision of a UK future outside of the EU, it would fundamentally reconfigure the domestic politics of Brexit.

More immediately, this all presents a very important choice for a new Cooper-Letwin Article 50 extension proposal.

Any extension needs the consent of the EU27. If the EU has come to the conclusion that an extension is EITHER a short-term technical extension OR a more lengthy delay to Brexit, then the Cooper-Letwin proposal would need to choose between these options.

If they go for a short extension it would be tantamount to accepting that Brexit will be a variant of the current negotiated texts with a risk that a No Deal Brexit could still happen if MPs refuse to back the deal.

If they go for a longer extension, it would recognise that only a No Deal Brexit had been largely taken off the table with a No Brexit option remaining in play as well as a potential change of government.

Whie the Prime Minister could have lived with an amendment giving a technical extension, an amendment that would significantly delay Brexit would be difficult for the Government to support even tacitly.  It would also be difficult for the Labour leadership not least because of the intense pressure on Jeremy Corbyn following this week’s spate of MP’s resignations from the party. The Labour Party may say it wants a general election but it is not obvious it would win given the internal divisions within the party over Jeremy Corbyn’s leadership.

Once again, issues of time profoundly shape what sort of Brexit – if any – will result. The fate of the Cooper-Letwin initiative may well depend on how much time they think is needed for an Article 50 extension.

There may be no deal in the desert but the sands of time continue to trickle for the UK and the EU.