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06 December 2018

61. Brexit Withdrawal Agreement: Ready, (Un)steady, Go?

In the few weeks since the draft Withdrawal Agreement was approved by the UK Cabinet (discussed here), quite a lot has happened but nothing has fundamentally changed: the PM is still in office, Parliament remains opposed to the government’s deal but has failed to coalesce behind an alternative, and it’s still unclear what might happen next.

Ready…

On 25 November, EU leaders formally agreed the text of the draft Withdrawal Agreement – the 500+ page, legally binding (once ratified) document setting out the terms of the UK’s exit from the EU – and the political declaration, which sets out what the UK and EU’s relationship may be like after Brexit.

On 26 November, the Prime Minister made a written ministerial statement to Parliament for the purposes of satisfying section 13(1)(a) of the EUWA (which we discussed here).

She said:

‘I am of the opinion that an agreement in principle has been reached in negotiations under Article 50(2) of the Treaty on European Union on the substance of:

a. the arrangements for the United Kingdom’s withdrawal from the European Union, and

b. the framework for the future relationship between the European Union and the United Kingdom after withdrawal.’

That was the ‘starting gun’ for the Government to ‘sell the deal’ it has negotiated, both to the country at large and to MPs.

The strategy adopted by No. 10 looks remarkably similar to that leaked in advance, with ‘themed days’ of benefits under the government’s deal. So, 28 November was ‘economy day’, with Mark Carney, the governor of the Bank of England, warning that the economy isn’t ready for ‘no deal’ and the Chancellor, Philip Hammond, explaining that (while the UK economy would grow more slowly whichever form Brexit took) the Government’s deal would ‘absolutely minimise those costs’. 29 November was ‘security day’ – much talk of the European arrest warrant and information sharing – and then 30 November was ‘international trade’, with Liam Fox reluctantly backing the deal, while the PM went to the G20 summit in Argentina.

(Un)steady?

Unfortunately for No. 10, that strategy was then overtaken by a row over whether the government was in contempt of Parliament.

This dated back to 13 November, when the government lost a vote (the Tories abstaining once they realised they wouldn’t win) which required it to release the ‘full legal advice’ it had received on the Withdrawal Agreement. Crucially, the government lost because the DUP (wanting to see the legal advice on the permanence of the Irish / NI backstop) supported Labour. On 3 December, the government published what it described as a ‘detailed legal analysis of the meaning and implications of the agreement’ and said the attorney general, Geoffrey Cox, would take questions on it in the Commons (itself rather unusual). Not good enough, said Labour, and complained to the Speaker, who ruled that Parliament should debate the matter.

On 4 December, Parliament inflicted two defeats on the government on this ‘contempt’ issue. First, it rejected the government’s compromise that the issue be referred to the Privileges Committee. Second, it voted that the government was in contempt for failing to do what Parliament had directed on 13 November. Incidentally, the fact the government has now lost multiple votes shows that it can no longer rely on the DUP for a working majority, at least in regards to Brexit matters (although whether the DUP would vote against it in a confidence motion is unclear). At least so far as Brexit is concerned, we now have a true minority government.

So, as required by Parliament, the government published its legal advice in full on 5 December. Rather than a full analysis of the Withdrawal Agreement (as was the ‘detailed legal analysis’), it answers only the question:

‘What is the legal effect of the UK agreeing to the Protocol to the Withdrawal Agreement on Ireland and Northern Ireland in particular its effect in conjunction with Articles 5 and 184 of the main Withdrawal Agreement?’

The first part of the advice sets out what we already know: under the Protocol in the Withdrawal Agreement (generally referred to as ‘the NI backstop’), the whole of the UK would form ‘a single customs territory with the EU’, but different arrangements would apply in GB Britain and in NI: NI would remain in the EU Customs Union, while GB would be in a separate customs union with the EU. NI would remain in the Single Market for goods – avoiding a hard Irish / NI border – but GB would leave, although GB would be required to maintain a ‘level playing field’ of environmental, labour, social and competition laws. This would mean some regulatory checks between NI and GB – a ‘border in the Irish Sea’ – which is not acceptable to the DUP.

The second part of the advice deals with whether the Protocol is permanent. It acknowledges that the Protocol is described as a temporary measure, but concludes (para. 16):

‘… [D]espite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein. Further, the Withdrawal Agreement cannot provide a legal means of compelling the EU to conclude such an agreement.’

The advice then explains that maintaining this temporary solution indefinitely raises issues for the EU: it has ceded control of part of the Single Market (ie NI) to a Third Country (ie UK); it has split the ‘four freedoms’ in respect of NI; NI’s unique position re the GB market may cause friction with the Irish Republic. Moreover, ‘the legal and administrative arrangements required to underpin the Protocol would be enormously complex’ and so a burden.

But, the advice continues, Article 19 does not allow the UK to terminate the backstop arrangement unilaterally, even if the UK and EU agree that negotiations on the future relationship have irretrievably broken down. While the Withdrawal Agreement does provide for an arbitration mechanism (a Joint Committee and an arbitral panel), the Attorney General doesn’t hold out much hope of this breaking any deadlock (para. 28):

‘It is extremely difficult to see how a five member arbitral panel made up of lawyers who were independent of the parties would be prepared to make a judgment as political as whether the Protocol is no longer necessary, in the absence of the consent of the parties, much less make a finding that it would be appropriate that only certain parts of the Protocol were no longer necessary…’

And so, he concludes (para. 30):

‘[T]he current drafting of the Protocol, including Article 19, does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK wide customs union without a subsequent agreement. This remains the case even if the parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement. The resolution of such a stalemate would have to be political.’

Brexiteers (probably 30 to 40 government rebels within the ERG group) will simply not accept being tied into such an arrangement indefinitely – even the TFEU contains article 50 allowing a country to leave the EU, they will say – it certainly isn’t ‘taking back control’, and the government’s ploy that rejecting its deal increases the possibility of ‘losing Brexit entirely’ simply doesn’t wash if, under the government’s own deal, any sort of ‘real’ Brexit might be indefinitely postponed by the EU anyway. In short, the basis of the government’s arguments for its deal become fundamentally unsteady.

Go…?

The government’s third defeat on 4 December was on an amendment by pro-European Conservative rebel Dominic Grieve. That amendment provides that, if the government’s deal is rejected by MPs in the ‘meaningful vote’ on 11 December (which given the above seems likely), rather than merely ‘taking note’ of what the government tells them, MPs can vote on what they want the government to do. In effect, this defeat overturns the government’s victory on ‘Grieve II’ back in June (which we discussed here).

This amendment may slim the chances of a ‘no deal’ Brexit, allowing MPs to push for an alternative to the government’s deal. Would the PM stay on in those circumstances, or would she go? And what then? MPs cannot simply ‘stop Brexit’: anything MPs vote for would have to be put into law by the government, because EUWA provides for the UK to leave the EU on 29 March 2019, and that would have to be repealed or amended.

But, also on 4 December, the EU Court of Justice released a written statement in the Wightman case (which we discussed here). That statement set out the opinion of Advocate General Mr Campos Sanchez-Bordona (and it is just an opinion, although the CJEU normally follows them in its rulings) that if a country decides to leave the EU, it should also have the power to change its mind during the two-year exit process specified in Article 50 of the EU treaty, and it should be able to do so without needing the consent of the other 27 member states (which is contrary to what the EU itself has argued).

That will encourage those who see the door ajar for Parliament to reject the government’s deal, and then instruct it to extend Article 50 (with the consent of the EU27) in order to pursue a different course: a People’s Vote, with Remain as an option, and then to withdraw the article 50 notice unilaterally.

The vote on 11 December looms large.

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‘Ready steady go! Go! Go! Go!’ (Generation X, Ready Steady Go)

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