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Reincarnation and Resurrection – the Afterlife of the European Communities Act 1972 in the Withdrawal Bill

The UK Government has published its long-awaited European Union (Withdrawal Agreement) Bill (the “WAB”) that – if enacted – will give legal effect to the revised Withdrawal Agreement negotiated between the EU and the UK. The revised Agreement settles the terms of the UK’s departure from the EU in respect of citizens’ rights, the financial settlement and the new arrangements to avoid customs and regulatory checks on the border between Ireland and Northern Ireland.

Domestic legislation is needed because the Withdrawal Agreement is in essence an international treaty between the EU and the UK and without an Act of Parliament it would not have direct domestic legal effect. Also the European Union (Withdrawal) Act 2018 expressly states that the UK cannot ratify the Withdrawal Agreement – and so cannot bind itself in international law to the Agreement – until the necessary implementing legislation is in place. In short, the Bill is the foundation of the legal framework by which the terms of the UK’s exit from the EU will be implemented domestically.

The WAB is a biggish bill containing forty clauses and six schedules. It is also complex because it amends the European Union (Withdrawal) Act 2018 meaning that the two pieces of legislation need to be read together. One reason for this is that it is the 2018 Act that repeals the European Communities Act 1972, the legislation which prior to exit gives effect to the UK’s membership of the EU. It is the 1972 Act which makes EU law a source of law and which ensures that UK law continues to comply with EU law as it changes over time.

For the purposes of this post, the issue is simply this: if the 1972 Act is repealed, how is the Withdrawal Agreement and the EU law it continues to apply during the transition period (and after) to be given legal effect in the UK and in a way that complies with specific obligations under the Withdrawal Agreement? It will become clear that notwithstanding the repeal of the 1972 Act it will enjoy a strange afterlife – reincarnated in certain respects to give effect to the Withdrawal Agreement and resurrected to give effect to the transition period created by the Agreement.

Implementing the Withdrawal Agreement – Meeting the Demands of the Withdrawal Agreement

In order for the provisions of the Withdrawal Agreement to have domestic legal effect, the WAB must be passed by Parliament. However, the WAB must be compatible with the Withdrawal Agreement. The Agreement identifies the type of legal effect that must be created in UK law by its implementing legislation.

Article 4(1) of the Agreement states that

… this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States

This rather elliptical provision identifies that the binding nature of EU law and its capacity for application and enforcement within the legal systems of the Member States has to be secured in the UK after membership. Article 4 goes on to clarify what this means in practice:

… legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

In other words, provided a provision of the Agreement or any other applicable provision of EU law is clear, sufficiently precise and unconditional and so is capable of being enforced – if needs be, before a UK court – the UK must ensure that this effect is facilitated and not prevented by UK legislation. Indeed Article 4(2) of the Agreement spells out further the consequences of the UK’s obligation. It encompasses:

… the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

This is clearly a very strong obligation that the WAB needs to create. Not only must individuals and companies be able to invoke provisions of the Agreement and applicable EU law in domestic proceedings, the WAB must ensure that UK authorities and courts have the power to disapply inconsistent and incompatible national provisions.

How then does the WAB approach this task?

It draws a distinction between implementation of the Withdrawal Agreement in general and the implementation of particular parts of the Agreement including the provisions relating to the transition period. Implementing the transition period will be discussed further below and what follows concerns how the implementation of the Withdrawal Agreement generally complies with Article 4 of the Agreement.

Reincarnating the European Communities Act – How Does the WAB Give Effect to the Withdrawal Agreement

How any Member State gives effect to EU law depends on its own constitutional and legal approach and so it might be difficult to determine whether the UK has complied with Article 4 by reference to how this is achieved in the other Member States. Instead what really matters is whether the WAB gives effect to EU law differently from how EU law was given legal effect under the European Communities Act 1972.

Section 2(1) of the 1972 Act provides:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression  “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.

The European Union (Withdrawal) Act 2018 repeals the European Communities Act and so switches off this domestic legal mechanism for giving effect to rights and obligations derived from an EU legal source. The challenge for the WAB, therefore, is how to create something to replace Section 2(1) of the 1972 Act while also complying with Article 4 of the Withdrawal Agreement.

Clause 5 of the WAB inserts a new section 7A into the 2018 Act which states:

(a) … all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement, and

(b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement,

as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom.

When we compare this with section 2(1) of the European Communities Act 1972 we see that the same terminology is deployed. The clear intention of the WAB is to replicate and reproduce in the 2018 Act the constitutional qualities of the 1972 Act. Accordingly, the WAB states that the Withdrawal Agreement is to be “recognised and available in domestic law” and “enforced, allowed and followed accordingly”. All of which is, no doubt, also to reassure the EU that the UK will – as it has done during memnbership – ensure that EU law is given its correct legal effect.

But the WAB does something that the 1972 Act does not, namely to assert the sovereignty of Parliament. It has always been a difficult constitutional question whether the 1972 Act limited parliamentary sovereignty and whether the effect that it gave to EU law could be limited by a future Act of Parliament. The principle of the primacy of EU law would suggest that Parliament does not have the sovereignty to enact rules inconsistent with EU law and indeed UK courts have disapplied Acts of Parliament that conflicted with EU obligations. Back in 2011, the European Union Act 2011 sought to clarify how the legal effects derived from EU law were recognised in UK law. Section 18 of the 2011 Act made clear that these effects were available solely by virtue of the 1972 Act and so sought to reconcile the primacy of EU law with the sovereignty of Parliament as expressed in the 1972 Act.

The 1972 is repealed by the 2018 Act and Clause 5 will vest in the 2018 Act the power to give effect to the Withdrawal Agreement. But this will now have to be read alongside Clause 36 of the Bill which Mike Gordon suggests is a development of the idea behind section 18 of the 2011 Act.

Clause 36 states:

(1) It is recognised that the Parliament of the United Kingdom is sovereign.

(2) In particular, its sovereignty subsists notwithstanding—

(a) directly applicable or directly effective EU law continuing to be recognised and available in domestic law by virtue of section 1A or 1B of the European Union (Withdrawal) Act 2018 (savings of existing law for the implementation period),

(b) section 7A of that Act (other directly applicable or directly effective aspects of the withdrawal agreement),

(3) Accordingly, nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.

On the one hand, it might be said that this clause does nothing other than state a principle of the sovereignty of Parliament that endured through membership. On the other hand, and in the context of a new Act that makes provision for the UK’s exit from the EU, this is a strong assertion of the sovereign power of the UK Parliament including expressly in respect of the obligation laid down in Article 4 of the Withdrawal Agreement to secure its legal effects. It is an overtly political move and one that is unnecessarily antagonistic. After all, if the principle of the sovereignty of Parliament is the cornerstone of the constitution nothing in the WAB could change that. We don’t expect other Acts of Parliament to assert the continuing sovereignty of Parliament because it is a principle that is inherent in the constitutional architecture. Whatever its precise legal effects, this is an exercise in political messaging, underlining the “Take Back Control” refrain of the Leave campaign. The 1972 Act may have been reincarnated but it wears a bell round its neck tolling the bell of sovereignty.

Resurrecting the European Communities Act – Giving Effect to Transition

The most difficult part of the WAB lies in its treatment of the transition period created by Part 4 of the Withdrawal Agreement. During transition, the UK will remain bound by EU law as if it were still a Member State. The transition period lasts until 31 December 2020 unless a decision is made to extend transition for one or two years.

If the 2018 Act did not repeal the European Communities Act then the UK could have continued to give effect to EU law in the same way as it did during membership. But with the repeal of the 1972 Act, the WAB might have approached the transition period in the same way as it deals with the Withdrawal Agreement itself, namely to apply Clause 5 to Part 4 of the Agreement. Instead – and despite the repeal of the 1972 Act – Clause 1 of the WAB seeks to “save” the 1972 Act for the purposes of giving effect to Union law during the transition period.

Clause 1 of the WAB inserts a new section 1A into the 2018 Act. Instead of reproducing and replicating the technique deployed by the 1972 Act (or even not repealing or delaying the repeal of the relevant provisions of the 1972 Act) the Bill states that:

The European Communities Act 1972, as it has effect in domestic law or the law of a relevant territory immediately before exit day, continues to have effect in domestic law or the law of the relevant territory on and after exit day so far as provided by subsections (3) to (5).

It is as if the 1972 Act still operated, with the Withdrawal Agreement in respect of the transition period added to the list of treaties to which the effects created by the 1972 Act apply. It is an exercise in temporary resurrection, although rather euphemistically, the Explanatory Notes to the WAB describe its function as a “repurposing” of the 1972 Act.  At the end of the transition period – what the Bill describes as “IP Completion Day” – the means of giving effect to EU law during this transition period are finally turned off and the 1972 Act is finally laid to rest.

The WAB has a difficult balancing act to pull off that is underpinned by what is self-evidently a highly political decision namely the repeal of the European Communities Act. With that legal device switched off, the WAB has to find a means of switching it back on for the enduring purposes of giving effect to the Withdrawal Agreement, and more temporarily for the purposes of the transition period, all the while ensuring compliance with Article 4 of the Withdrawal Agreement. The picture is also complicated because the 2018 Act as enacted domesticated EU law as of “exit day”. This creates the obvious risk of EU law having effect both as domestic law under the 2018 Act as enacted and then via the WAB amending the 2018 Act applying the effects of the 1972 Act. Clause 25 of the WAB, therefore, delays the domestication of EU law until after the end of the transition period. So the WAB temporarily switches back on the effects of the 1972 Act until the end of the transition period whereupon EU law becomes domesticated and effective in terms of the 2018 Act.

Giving Effect to New EU Rules During The Transition Period

The transition period created by the Withdrawal Agreement and given effect by the WAB does not simply maintain the application of EU law as it stood at exit day to the UK as if it were a Member State. New EU rules adopted and coming into force during the transition period also form part of the body of law which must be given domestic legal effect. Saving the effects of the 1972 Act also saves its ambulatory capacity under section 2(1) of the 1972 Act to give effect to “directly applicable” EU law including any new or amended directly applicable provisions up until the end of the transition period (clause 25(3)). These directly applicable provisions are then domesticated as UK retained law at the end of the transition period.

The question is what to do about new EU directives coming into force during the transition period. How these are given effect depends upon how the 2018 Act deals with directives. The 2018 Act recognises that with the repeal of the 1972 Act, statutory instruments which gave domestic effect to directives would no longer have a valid legal basis and so existing instruments are “saved: via section 2 of the 2018 Act. That technique works inasmuch as the instruments did once have a valid legal basis when enacted and that legal effect is preserved by the 2018 Act.

More difficult, however, is the idea that notwithstanding its repeal, the effects of the 1972 Act – in particular the power to make statutory instruments under section 2(2) of the 1972 Act – can be saved and applied to new EU directives. Clause 1 inserts a new section 1A(3)(b) which amends section 2(2) of the 1972 Act and so assumes that the power contained in the 1972 Act still applies to allow Ministers to make regulations to implement new directives entering into force during the transition period. However, it is one thing to save or preserve a legal effect of an instrument that at the time of its adoption had a valid and in force statutory authority. It seems decidedly odd to seek to preserve a statutory rule-making procedure in respect of new EU acts when that underlying statute is explicitly repealed. Once again one cannot help but be drawn to the conclusion that it would have been better not to repeal the 1972 Act until after the transition period.

For new EU rules adopted during the transition period the WAB introduces an innovation in clause 29 which inserts a new section 13A into the 2018 Act. This gives the European Scrutiny Committee of the House of Commons a power beyond its current powers under Standing Orders (119 and 143) to highlight issues of political and legal significance arising from new EU rules. Rather if the Committee thinks that a new rule raises issues of “vital national interest” and publishes a report accordingly, a Minister must within 14 sitting days move a motion for a debate and a vote. However, this does not give either the Minister or the Commons a veto over new EU rules and the Withdrawal Agreement itself does not empower the Joint Committee to restrict the application to the UK of new rules adopted during the transition period if there is any domestic objection. There is provision for the Joint Committee to become engaged if new EU rules become applicable to the UK in respect of Northern Ireland  under Article 13(4) of the Protocol on Ireland/Northern Ireland but this applies only in respect of Northern Ireland and after the transition period has ended.

Post-Transition EU Rules – The Protocol on Ireland/Northern Ireland

After the transition period, the UK is not obliged to give continuing effect to EU rules except if it precommits to doing so. In respect of the revised Protocol on Ireland/Northern Ireland, the UK has committed to continue to apply certain EU rules including on manufactured goods, food and veterinary checks with a view to avoiding regulatory checks. These rules are often subject to amendments and replacements. Article 13 of the Protocol makes clear that the UK – in respect of Northern Ireland – will be bound to apply amendment and replacement rules. Where the EU adopts a wholly new provision that falls within the scope of the Protocol, there is a procedure involving the Joint Committee that can decide whether to add the new EU provision to the relevant annexes to the Protocol. This creates a shifting legal landscape for the WAB to seek to implement.

Unsurprisingly, the WAB deals with this changing legal background by empowering Ministers – and devolved institutions within their competences – to enact regulations both to give effect to the Protocol and to any provision of EU law made applicable by virtue of the Protocol. In this way, a new power to give effect to EU rules for part of the United Kingdom is created. The issue then is what legal effect to ascribe to these regulations. In other words is their status a wholly domestic one or does Article 4 of the Withdrawal Agreement continue to apply. The revised Protocol does not expressly identify what legal effect provisions of EU law made applicable to the UK in respect of Northern Ireland should have but the context of Article 13 of the revised Protocol suggest that Article 4 of the Withdrawal Agreement remains applicable. Indeed, Article 13(2) of the revised Protocol makes clear that the obligations contained in Article 4(4)-(5) of the Withdrawal Agreement – to interpret EU law in conformity with the case law of the Court of Justice – endure after the end of the transition period.

Conclusion

Piecing this together requires one to read across the Withdrawal Agreement and the Protocol on Ireland/Northern Ireland to establish what legal obligations the WAB must seek to implement. The WAB itself has to be read in conjunction with the 2018 Act and the European Communities Act 1972. This is not an entirely easy task and the analysis here has focused on the broad structure of implementation rather than the finer detail where one finds real complexity in joining all the bits of the legal jigsaw together.

It is easy to complain and wring one’s hands about the difficulty of it all. That is not a reason in itself to be dismissive of the WAB and clearly a great deal of work has gone into making the legal framework operational. Yet one cannot ignore that much of this complexity is generated by political decisions, most notably that the European Communities Act 1972 had to be repealed. The very limited time that is available to parliamentarians to scrutinise this complex legal framework is also a political choice and one which the Prime Minister has sought to underscore by threatening to pull the Bill if the proposed timetable for scrutiny is not adhered to. It remains to be seen whether the Bill dies before it has a chance to reincarnate and resurrect aspects of the 1972 Act.

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“Shall” I Explain Why this Spectator Story is “Utter Bollocks”?

The editor of The Spectator, Fraser Nelson has been pushing on Twitter a story by Charles Day on the Spectator blog that there is a legal onus on the EU to “to do a Brexit deal”. The crux of the argument is the mandatory language used in Article 50 TEU which apparently places legal duties on the EU – but not the UK – to negotiate AND conclude “a deal”. In a (later deleted) tweet, Mr Nelson stated that:

The law is clear: the EU is obliged (by its own rules) to offer a deal that Parliament can accept says Charles Day.

I described this claim as “utter bollocks’ in a tweet which got rather a lot of attention. So I thought I should explain my objections. It won’t take long.

Mr Day’s position is this:

Let me be very clear: there is a binding legal obligation upon the EU to provide us with what the media call ‘a deal’. Not only shall they negotiate, but they shall “conclude” one.

This apparently derives from the wording of Article 50 TEU which states:

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

There is clearly a lot of mandatory language here about what the EU “shall” do once a state notifies the EU of its intention to withdraw.

However, the use of the word “shall” is simply demonstrative of the steps which the institutions “shall” follow in the negotiation and conclusion of an agreement. In this respect, Article 50 merely echoes Article 218 TFEU which sets out in a generic fashion the standard operating procedure to be following by the EU in negotiating international trade agreements. As a reminder, Article 218 TFEU states this:

2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team. 

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

The same mandatory language is used in the treaties but to do no more than establish the correct steps in the procedure to be followed by the institutions.

Now, would anyone seriously contend that this mandates the EU to do a trade deal with the U.S.A. rather than simply setting out what process to follow should a negotiation be initiated and an agreement be reached that would be capable of being approved and concluded by both sides?

Not only does Mr Day misunderstand the legal significance to be attached to this wording, Mr Nelson extrapolated further in his assertion that the legal obligation extended to the content of the deal insofar as it had to be acceptable to the UK Parliament. Following the logic and the analogy earlier, this would be equivalent to stating that the EU was under a legal obligation to do a trade deal with the U.S.A. that the US Congress would accept.

Politically, it is clearly inadvisable for the EU and the UK to negotiate a deal which – recognising that it has to be approved by both the European Parliament and the Westminster Parliament – they know could not command approval by those institutions. That is why on the EU side, negotiators have kept the European Parliament informed throughout the negotiations.

It would be quite wrong, however, for the EU to interfere in the UK’s constitutional system for parliamentary approval and therefore the responsibility for the negotiation of a deal acceptable to the UK Parliament necessarily has to be a responsibility of the UK Government.

Which is also why the EU has insisted that if the UK wants something different from the Withdrawal Agreement it negotiated with the EU, the UK has to demonstrate what it wants and that what it wants will obtain a majority in the Commons. It is not for the EU to second guess the UK Government or to interfere in the constitutional relationship between the Government and Parliament.

The blame-shifting for a No Deal Brexit is clearly well underway. But can we avoid the utter bollocks of pretending that EU law demands that the EU offers the UK what it wants, not least when three years on from the referendum, we still have very little idea what that might be? Shall we?

Kenneth Armstrong is Professor of European Law at the University of Cambridge and author of Brexit Time – Leaving the EU: Why, How and When?

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Extra Time – But for What?

The point of writing Brexit Time and this blog has been to show how time shapes Brexit. From the timing of the referendum and the triggering of Article 50 to the two-year window for negotiating an orderly withdrawal, time has been a factor at key moments in the Brexit process.

As we approach 29 March 2019 – the UK’s scheduled date of departure from the EU – the European Council has offered the UK extra time to facilitate an orderly exit from the EU.

If MPs approve the deal negotiated between the EU and the UK before 29 March, the EU27 have offered to extend the Article 50 negotiation period to 22 May to allow legislation to be passed in the UK to give legal effect to the Agreement in domestic law.

Even if MPs fail to approve a deal – either because an approval motion is proposed and defeated or because the UK Government delays a vote till after 29 March – European leaders have also offered the UK an extension till 12 April.

The choice of these dates is clearly to avoid getting the UK mixed up in elections to the European Parliament which neither sides wants. The extension till 22 May is less extra time that Theresa May requested in her letter to European Council President Donald Tusk. Despite knowing that the EU27 did not want an extension into the election period, Theresa May had requested a 30 June deadline. The offer from the European Council underlines the European Commission’s position that a longer extension would pose legal risks in the formation of the new Parliament. So although the EU27 have shown some flexibility it’s not at any price.

What is significant about the extension offer is that the original idea of a single deadline of 22 May conditional on MPs approving a deal has been significantly modified by the unconditional offer to extend to 12 April. This is intended to prevent a cliff-edge “No Deal” exit on 29 March. But this offer is also problematic.

Firstly, Parliament is scheduled to be in recess from 4-23 April. In Parliamentary terms this only gives one additional week for a “meaningful vote” to be presented to MPs.

Secondly, as things now stand “exit day” is defined in UK law as 29 March. An extension beyond that date in terms of Article 50 TEU would keep the UK in the EU as a matter of EU law but without domestic law giving continuing legal effect to membership. The European Union (Withdrawal) Act 2018 allows a Minister to change the exit date by regulation and this would need to be approved by Parliament before the 29 March deadline. If MPs have not approved a deal the exit date would be changed to the 12 April default. If by that extended date the Brexit deal has been approved a further regulation would need to change the exit date to the later 22 May deadline on the assumption that the EU27 would agreed to this extended deadline notwithstanding that the vote had not taken place “next week” (as stipulated in the Conclusions to the European Council meeting).

How things play out depends on a couple of key events next week.

On Monday the Commons is set to debate a motion triggered under the EU (Withdrawal) Act as a consequence of the Commons’ second rejection of the EU-UK Brexit deal. Although this is a technical motion on how the Government intends to proceed it is also an important moment for MPs to signal how they want the Brexit process to develop.

A cross-party Amendment has been proposed that changes the normal rule giving precedence to Government business so that on Wednesday 27 March MPs can move and debate motions other than a Government motion to approve a Brexit deal. The idea behind this is to give MPs control over Parliamentary business with a view to taking control over the process.

The second key event would be the Government again asking the Commons to approve the Brexit deal. The offer of an extended Brexit deadline assumes that vote will take place the week beginning 25 March although in theory it could be delayed to the week beginning 1 April.

Despite the Commons Speaker’s statement that the Government cannot put substantially the same proposition to the House as the motions previously rejected, the European Council’s formal approval and endorsement of the Brexit deal together with a proposal to lay a draft regulation extending Brexit deadline would likely pass the Bercow test and so allow yet another “meaningful vote” to progress. However following the Prime Minister’s ill-judged berating of the very MPs whose backing she needs it is far from obvious that the deal will be approved.

The EU has made clear it is open to making changes to the Political Declaration if there is a majority in the Commons for an alternative Brexit. There are cross-party moves to articulate what that might look like and if the amendment to Monday’s motion is passed m, the Commons could have the opportunity to come to a view.

But the issue of free movement of people could make consensus on a Common Market 2.0 vision of the future relationship hard to sell to MPs in Leave-voting constituencies.

In the absence of an alternative consensus and in the face of a No Deal Brexit the only option may be to admit failure and requests an Article 50 extension of much longer duration. An extension of a much longer length would suggest a fundamental change in domestic politics is needed to chart a way forward. That could be an early general election or a further referendum.

Politics takes place in time but it is also structured by time. Brexit Time is unrelenting. It is also unforgiving.

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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.