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.

100 Days to Brexit -From ‘Branching Histories’ to Binary Choices

Forget the 12 Days of Christmas, there are now just 100 days remaining of the United Kingdom’s forty-six-year membership of the European Union. In the upcoming weeks, days and hours, critical choices will be made that will shape not just Brexit but every aspect of UK political, economic and social life in the years ahead.

Eighteen months ago I posted the following on this blog:

In the introduction to Brexit Time: Leaving the EU – Why, How and When? I quote from a blog post written by Dominic Cummings, the campaign director for Vote Leave. In that post, he describes a world in which events happen that change the future, but where those events happen in a ‘non-linear’ way. These are the ‘branching histories’ that take us down one road rather than another.

This was brought back to mind when listening to my Cambridge colleagues David Runciman and Helen Thompson discussing Brexit on their weekly Talking Politics podcast. In particular, David spoke of the narrowing of choices down to a moment when a binary choice will be apparent and a decision will be made that will define Brexit. Whereas the Cummings thesis is that moments of destabilisation and disruption produce an expanding set of political choices and options, the Runciman perspective is one of a gradual narrowing of those choices into a new moment of decision.

What is perplexing about our current times is that both dynamics – expanding and contracting choices –  appear to be possible at the same time.

With the production of a Withdrawal Agreement and a Political Declaration on the future UK-EU relationship in November, the range of options available to politicians seemed to narrow decisively. Indeed, the consensus from both the UK and the EU sides of the negotiations is that this is thedeal and it is the only deal on the table. And with anxieties about the Irish backstop continuing to put at risk the conclusion of the deal, the response from the EU has been to reiterate that the text of the agreement is not to be re-opened for further negotiations.The binary choice seems to be Deal or No Deal.

It is precisely because the Prime Minister’s Brexit deal looks unlikely to get the consent of MPs at Westminster – a realisation that led the PM to delay a vote on the deal until mid-January – that every potential alternative outcome – from a ‘No Deal’ Brexit to a ‘Norway Plus’ future relationship – now seems to be in play. The ability of the UK to revoke its Article 50 withdrawal notification is also now an option following the recent ruling of the Court of Justice of the EU. We seem to be generating more possibilities rather than narrowing the choices down.

But choices will need to be made and the sequencing of those choices will determine the outcome.

The first choice is for MPs to make: to approve or not to approve the PM’s Brexit deal.

This is a decision MPs gave to themselves when Parliament enacted the EU Withdrawal Act 2018. The Government cannot proceed to ratification of the Withdrawal Agreement without parliamentary approval of the legally-binding Agreement and the accompanying non-binding Political Declaration (setting out the direction that UK and EU negotiators intend to take to talks on the future relationship).

If MPs do not approve the Brexit deal, Parliament has no capacity to substitute its own preferred version of Brexit. It cannot enter into negotiations with the EU. It could try directing Government as to the deal it might want – something it perhaps ought to have done when empowering the Prime Minister to trigger the Article 50 withdrawal process – but it is hard to conceive how this could be done without Government backing for the legislation that would then bind the Government in its EU negotiations, nor is it obvious that the EU would consider going back to the drawing board. if MPs reject the deal table then – absent anything else – a No Deal Brexit cannot be avoided. So why might the deal be rejected?

For those who dislike the backstop provisions of the Withdrawal Agreement, a No Deal Brexit may seem preferable despite its implications for the Irish border and for the reciprocal protection of the rights of EU citizens in the UK and UK citizens in the EU. This is the view of those for whom any deal betrays the mantra of taking back control. If the objection is instead to the future UK-EU relationship contained in the Political Declaration, there is nothing to prevent a different type of relationship being negotiated once the UK leaves the EU. The Political Declaration does not bind either side to only one vision of the future. Choices can still be made including the option of Norway-style access to the Single Market whether or not combined with a Customs Union. Provided the Withdrawal Agreement is otherwise acceptable, it is less obvious why MPs would vote down this deal simply because they think a better future UK-EU relationship is possible. Like it or not, the smoothest path towards the UK’s departure from the EU is to accept this deal.

If the deal is rejected by MPs, the Government faces further choices.

There is a political choice about whether a new government is needed to take charge of Brexit. This could happen in one of two ways without a general election. Having survived a vote of no confidence in her leadership within her own party, the Cabinet could, nonetheless, force the PM to resign under threat of Cabinet resignations. After all this was how Margaret Thatcher was evicted from No. 10. The problem the Conservatives face is the absence of an alternative position or rallying figure around which Tory MPs could coalesce. Given that the Conservatives are running a minority Government, unless a new Conservative administration could be formed that could command the confidence of the Commons, the initiative could pass to the Opposition parties to form a minority government. Because of the riskiness of the political arithmetic entailed in running minority administrations, the better option might be to precipitate an early election under the Fixed-term Parliaments Act. Nonetheless, for the Conservatives the risk would be that Labour would capitalise on the Conservative’s mishandling of Brexit, while for Labour the risk would be that it inherits the Brexit problem weeks before the UK’s intended departure. Changing government at this time seems politically dangerous.

It is against this background that the option of a further referendum begins to make more sense. Mrs May could end up backing a referendum as a Hail Mary option to give voters the option of backing her deal, thereby forcing MPs to get in line with the electorate. For those who believe a No Deal Brexit – or ‘managed’ No Deal – is preferable to the Brexit deal, allowing voters that option also has some leverage. It may seem more acceptable to fall off the cliff-edge if the people give politicians the final push. However, it is impossible to conceive of the necessary referendum legislation getting through Parliament if all that is offered is a choice between Mrs May’s Deal or a No Deal Brexit. So perhaps contrary to David Runciman’s assumption that decisions inevitably move towards a binary choice, a third option of remaining in the EU could well be an option.

With three potential choices on a referendum ballot paper – and the risk that a split ‘Leave’ vote could allow a ‘Remain’ vote to win even if the combined Leave vote was greater than 50% – voters would have to be asked to rank their preferences. A referendum in these terms would have the advantage of allowing voters to express multiple preferences at least as regards where things stand now. It would not give voters an alternative deal to vote on but as explained above, accepting the current deal does not rule out alternative scenarios in the future.

In a previous blog post I came to the conclusion that a referendum on the options was preferable to an attempt by Parliament to manufacture a ‘least worst Brexit’. That was when we were 340 days from exiting the EU and before the UK Government and the EU agreed withdrawal terms. The political climate has deteriorated significantly to the point we are now at and we need to be honest that a referendum that selects any one of the available Brexit options also has destabilising consequences.

If the electorate backs the PM’s Brexit deal as delivering on the 2016 referendum, it will highlight the chasm between politicians and the people on Brexit. Voters will have done the dirty work that MPs appeared incapable of doing on their own. The erosion of faith in parliamentary democracy will accelerate.

Backing a No Deal Brexit would double down on a loss of faith in politicians to negotiate an orderly exit from the EU by engendering a significant shock to the UK, Irish and EU economies. The babble about a Brexit on WTO terms or a managed No Deal Brexit veers between the wholly inaccurate and the triumph of hope over reality. Crashing out of the EU will produce a political and economic crisis.

If Remainers content themselves with the belief that staying in the EU is a comfortable reversion to the status quo, they ignore that the status quo changed with the 2016 referendum. The genie will not be put back in the bottle. The political right – and its representation in the tabloid press – stands ready to claim that ‘our’ Brexit has been stolen from ‘us’. Don’t be surprised if the Yellow Vest movement makes an appearance on UK streets, filling the gap created by the UKIP implosion.

The Prime Minister has suggested that another referendum will damage democracy. The problem is more that democracy is capable of damaging itself, the political and economic institutions and the social order it sustains, and from which it is itself sustained. That process began with the 2016 referendum and could accelerate with another referendum. The flip-side is that the system of representative democracy does not seem to be working either.

Perhaps David Runciman is right after all. There are binary choices to be made that are about the choice of democratic process – parliamentary democracy or direct democracy – as well as about what form Brexit will take.

If Parliament takes the initiative and approves the Withdrawal Agreement and Political Declaration, it will have taken the options of No Deal and No Brexit off the table. If Parliament rejects the deal and leaves it to the electorate to decide, it seems highly unlikely a ‘People’s Vote’ would really be on the deal if it is the deal that MPs have rejected. In practice, even if there are three options on the ballot paper, the first preference selection would likely become a binary choice between a No Deal Brexit and No Brexit. A referendum would put back on the table what parliament could have taken off the table. That is the choice MPs must make when they return to the Commons in January.

Now is not the time for a ‘least worst’ Brexit – it’s time for a referendum on Brexit itself

There are 340 days to go until the UK leaves the EU.

The time remaining for the UK and EU to negotiate a withdrawal agreement is even less than that.

Domestic legislation still needs to be passed to retain EU law in national law. Time will also be needed to give domestic legal effect to any withdrawal agreement.

Time is short even to do what the UK Government wants to do, namely to leave the EU, its Single Market and Customs Union, and instead negotiate with the EU a new relationship based on a free trade agreement.

And yet we still seem to be talking about alternative options. Indeed, the term “least worst Brexit” seems to be gaining some currency as politicians and others wake up to the reality of what the UK intends to give up from its EU membership as well as all the difficulties and limitations associated with what the UK Government aspires to achieve.

A prime example of these attempts to temper the effects of Brexit is the idea of remaining in a customs union. The focal point for this debate is Parliament, with both the Lords and the Commons seeking to steer the Government towards a customs union.

For the Commons, a debate will be held on Thursday on a motionthat calls on the Government ‘to include as an objective in negotiations on the future relationship between the UK and the EU the establishment of an effective customs union’ between the UK and the EU. It will be a debate with no immediate legal consequences and the reference to a ‘future relationship’ may look beyond the immediacy of current negotiations. The Lords, however, have gone further in amending the European Union (Withdrawal) Billto make the repeal of the European Communities Act 1972 conditional on Ministers laying before both Houses of Parliament a statement concerning the steps taken in negotiations under Article 50(2) to negotiate an arrangement to continue participating in a customs union with the EU.

In response to these moves, the UK Government has today repeated its position that the UK will be leaving the customs union. So what should we make of attempts by Parliament to push for a least worst Brexit?

The first thing to be clear about is that the UK Government is not negotiating in Brussels according to a mandate that Parliament has set for the UK Government in advance of negotiations. Our constitutional set up is instead one in which Parliament’s role is to legislate to implement international agreements and, in more recent times, to signal its approval of such agreements prior to ratification so as not to lead to the circumstance in which a Government is confronted with a Parliament unwilling to legislate for a deal that it does not like. We are now 15 months on from the Lancaster House speech in which the UK Government set out what sort of Brexit it wanted. We are also more than a year into the negotiations that will lead to the UK’s withdrawal from the EU with likely less than half a year left to finalise the deal. This hardly seems the moment for Parliament to decide it wants to instruct the UK Government on what it should be negotiating.

Secondly, Parliament cannot simply legislate for a customs union. The UK is leaving the EU and any future relationship can only be negotiated between the UK Government and the EU. The Lords amendment to the Withdrawal Bill does recognise that in the sense that it only demands that Parliament is informed about those negotiations. As such it is also an amendment whose condition is easily satisfied. After all, ministers may simply state to Parliament that ministers have taken no steps to negotiate a customs union as it is not government policy to have one with the EU.

Given that the Government is clear about what it wants, the only real option for Parliament is to bring the Government down one way or another. And if this Government is gone, are we really talking about forging a least worst Brexit or something else all together?

Because if there is a strong enough political momentum to reject the Government’s Brexit strategy and to argue instead for a customs union and likely also the Single Market, then perhaps there is political momentum to push for retention of EU membership itself.

As I argued in Brexit Timeand as I have been suggesting here, Brexit is a choice in time and of time. In the time that remains before the UK leaves the EU, I think the choice is not between the UK Government’s form of Brexit and a least worse version. It is between what the Government is seeking or the UK remaining in the EU.

So I have come to a conclusion. There should be a referendum on the question whether the UK leaves the EU on the terms that the UK Government negotiates, or the UK remains a Member State of the European Union. There is no time for a third way option and all the chatter that suggests that such an option might be viable is, to my mind, a distraction.

I fully understand those that believe another referendum could be divisive. But to be clear this would be a referendum on a different proposition. And it seems to me that people on both sides of this argument need to have the courage of their convictions. Either the Government is right to push for an end to EU membership on the terms it negotiates, or it is wrong and the status quo should prevail. As I have also argued on this blog, if there is to be another referendum, time is limited.

This is not the time for Parliament to try and find a middle ground. It is time for Parliament to allow the electorate to make a decisive choice. If Parliament wants to legislate for anything it should be to for a referendum.