Monday, 12 November 2018

Brexit ~ Is a withdrawal agreement imminent?

Since the EU Council met in Brussels on 17-18 October there has been little hard news as to whether the negotiations will result in a Withdrawal Agreement.

According to one report (BBC 12 November) there may be an announcement by Wednesday 14 November so that an agreement can be signed off at the EU Council before the end of November.  A meeting would be convened if it is required.

The report notes -
"Time is running out to put the wheels in motion for the summit.  EU member states need time to scrutinise any agreement before the gathering and the European Council's president Donald Tusk has reportedly said a deal must be reached by Wednesday evening at the latest."  Both sides want to schedule a special summit of EU leaders at the end of November to sign off the withdrawal deal but the EU says it will only agree to this if agreement can be reached on the issue of the Irish border.

The backstop:

The principal sticking point in the Brexit negotiations has been the desire to avoid a "hard border" between the Republic of Ireland (EU Member) and Northern Ireland (in the UK and out of the EU).  It is claimed that a hard border would damage the Good Friday Agreement peace process and that sectarian violence could return - Business Insider UK - 2 April 2018.  
Both the UK and EU have repeatedly pledged their intention to avoid seeing this boundary become a ‘hard border’. The question, of course, is how.  Both sides share a hope that this commitment will be met through the future UK-EU relationship.  The form and substance of the future relationship still has to be negotiated and is unlikely to be in place until, at the earliest, the end of the transition period - i.e. end of 2020.

With this in mind, both the UK and the EU agree that there should be a ‘backstop’ arrangement in the Withdrawal Agreement. They view this like an insurance policy: something neither wish to have to call upon, but which would come into force if it is the only way of upholding their common pledge.  What they disagree about is what form that insurance policy should take - see UK in a Changing Europe - Brexit and the backstop - 7 November.

In the event that a Withdrawal Agreement cannot be achieved then a hard border seems to be inevitable though there is lack of clarity as to what exactly that might entail.  There is an irony in that pursuit of a backstop could prevent a withdrawal agreement and and lead to a hard border - the very thing that is not wanted.  Nevertheless, at this stage, it seems unlikely that pursuit of a backstop will be abandoned. 

Can Brexit be stopped?

Another angle is that Jeremy Corbyn MP (Leader of HM Opposition) told Der Speigel that Brexit could not be stopped.  Of course, it may be that Mr Corbyn does not wish Brexit to be stopped and he may be seeking to avoid any blame for Brexit.  However that may be, the question is whether Brexit could legally be stopped.  To try to answer that requires a look at (a) EU law and (b) the UK legal position.

EU - Under the terms of Article 50 TEU, Brexit takes place on 29 March 2019 - two years after the UK's notification.   A question, as yet unanswered, is whether, as a matter of EU law, the UK could unilaterally revoke its notification of withdrawal.  This question has been discussed for a considerable time - see, for example this previous post of 23 July 2017.  An attempt to achieve an answer is currently before the Court of Justice of the EU (CJEU) because Scotland's Court of Session Inner House, in the face of government opposition, referred the question under the preliminary reference procedure set out in Art 267 TFEU - see Andy Wightman MSP v Secretary of State for Exiting the EU [2018] CSIH 62.

It is now reported that the government is applying to the Supreme Court of the UK for permission to appeal against the Inner House's decision to refer to the CJEU.

It would seem that the government really does not wish this important question to be answered even though the government has consistently maintained that it has no intention of ever revoking the notification and it is willing to deploy considerable public funds to prevent a reference.  Without a definitive answer, MPs at Westminster would be kept in the dark as to the possible option of revocation of the notification.

The power of a national court to refer questions of law to the CJEU is to be found in Article 267 of the Treaty on the Functioning of the EU (TFEU).

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

Appeals from the Court of Session to the Supreme Court are addressed by section 40 of the Court of Session Act 1988 (as amended).  Certain decisions of the Inner House may be appealed to the Supreme Court but it is difficult to see how a decision to make a preliminary reference is one of them.  In any event, the Inner House - comprising Scotland's most senior judges - has determined that the reference is necessary to enable it to give judgment.  There seems to be no good reason why the Supreme Court would seek to gainsay that. 

UK - As the law now stands, approval by Parliament of a withdrawal agreement requires the European Union (Withdrawal) Act 2018 section 13 to be applied. It is open to Parliament to alter the law by enacting further legislation but that is a very unlikely scenario particularly in light of the remaining time before Brexit takes place.  If, for example, there was a political will to hold a further referendum ("People's Vote") then legislation will be required before it can take place.

Under section 13, a withdrawal agreement may not be ratified unless the House of Commons approves it.  If the Commons do not approve it then the government has to make a statement as to how it intends to proceed. Section 13(6) then applies so that the government's statement is considered.

This is far from satisfactory and it is debatable whether MPs actually obtained the "meaningful vote" which they sought.

The whole basis of the Act, as suggested by its short title [section 25(5)], is that the UK is leaving the EU.  The Act does not contain any provisions to require the government to seek to reverse Brexit.  It also seems that whatever "meaningful vote" actually means it does not include an option to reject the withdrawal agreement and remain in the EU.

Section 13 contains similar provisions for 2 other scenarios:
  • If the Prime Minister makes a statement before the end of 21 January 2019 that no agreement in principle can be reached in negotiations
  • If, at the end of 21 January 2019, there is no agreement in principle in negotiations under Article 50(2) of the Treaty on European Union on the substance of the arrangements for the United Kingdom's withdrawal from the EU.
Consequently, if any situation arises other than approval of a withdrawal agreement it is unclear what may happen.

Among political commentators there are various forecasts as to how MPs might vote but the forecasts seem to vary daily and are not repeated here.  Ultimately, MPs will have to weigh the detail of the agreement and assess the consequences of either approving or not approving it.  Whilst the idealist might think that MPs should vote in the best interests of the country as a whole it would be unrealistic to think that political party considerations and prospects of re-election will not be in their minds.  Although the next General Election is scheduled for 2022, an earlier general election can by no means be ruled out and it might be thought to be desirable.

Approval of a withdrawal agreement is far from certain and if it is rejected then it is unclear what may happen and this is why an answer to whether the Article 50 notice can be withdrawn unilaterally is important.


Institute for Government - Parliament and the Brexit Deal

Institute for Government - Parliament's 'meaningful vote' on Brexit

The Conversation - What happens if Parliament rejects a Brexit deal

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