Friday, 16 November 2018

Draft Withdrawal Agreement - November 2018 - No.2 - Preamble and Common Provisions

The Draft Withdrawal Agreement is worthy of analysis even though, at the time of writing, it is far from certain whether it will ever be approved by the UK Parliament.  It is important that the agreement is properly understood even if, ultimately, it is rejected.

On Thursday 15 November it received a hostile reception in the House of Commons, there were Ministerial resignations.  This morning it appears that Conservative MPs are preparing for a vote of confidence in Mrs May as Party Leader despite the point that changing the Prime Minister as the UK leaves the EU would carry serious risks.

On Friday 16 November, the Prime Minister appointed Mr Stephen Barclay MP as Secretary of State for Exiting the EU.  Mr Michael Gove MP rejected an invitation to take on the role - BBC News 16 November.

At a Press Conference
held on 15 November, the Prime Minister defended the agreement - The Guardian 15 November- "At a sombre press conference following a dramatic day of turmoil, the prime minister said she believed “with every fibre of my being” that the 585-page agreement unveiled on Wednesday night was “the right one for our country and all our people."

"If we do not move forward with that agreement, nobody can know for sure the consequences that will follow. It would be to take a path of deep and grave uncertainty when the British people just want us to get on with it,” she said.

Of course it may be that a calmer mood will eventually prevail together with a realisation that the Agreement is by no means a bad one even if there are aspects of concern.  Critics of the agreement rarely offer constructive alternatives and it will be necessary to anxiously examine the risks to the economy of rejection.

That's the flavour of the febrile political background but let's take a look at the first two Parts of the 585-page document. 

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

The structure of the agreement is - PREAMBLE, PART ONE Common Provisions, PART TWO Citizens' Rights, PART THREE Separation Provisions - (this divides into 13 separate Titles each addressing a specific area such as On-going Judicial Co-operation), PART FOUR Transition, PART FIVE Financial Provision, PART SIX Institutional and Final Provisions.  Protocols then follow for Ireland/Northern Ireland, the Cyprus Sovereign Bases, and Gibraltar.  Finally there are Annexes I to IX.  The protocols and annexes form an integral part of the agreement - see Article 182.


There is to be a transition or implementation period during which Union Law will apply in the UK.  The purpose of this period is to avoid disruption in the period during which agreements on the future relationship will be negotiated.  PART FOUR of the agreement deals more specifically with transition and, by Art 126,  the transition period will "start on the date of entry into force of this Agreement and end on 31 December 2020."  It is possible for the transition period to be extended under Article 132 but there may be only one extension and the UK will be required to contribute financially during any extension.  A decision to extend has to be made before 1 July 2020.

During the Transition period the UK is able to negotiate "new international agreements" (e.g. relating to trade) but they cannot come into force until after the transition period ends (unless the EU agrees).  Typically, trade deals can take several years to establish.   Consequently, the transition period could end before other trade deals are in place.

There will be a single financial settlement.  This is dealt with in detail in Part Five.

There will be binding dispute settlement and enforcement rules - deal with in Part Six.

The Agreement is in parallel with the Joint Political Declaration.

All necessary steps to be taken to begin, as soon as possible after 29 March 2019, negotiations for the future relationship.


Article 1 - This Agreement sets out the arrangements for the withdrawal of the United Kingdom of Great Britain and Northern Ireland ("United Kingdom") from the European Union ("Union") and from the European Atomic Energy Community ("Euratom).

Article 2 - Definitions - here various terms are defined - e.g. "Union Law"

Article 3 - Territorial Scope - Unless otherwise provided in the Agreement or in Union Law made applicable by the Agreement, any reference to the United Kingdom or its territory shall be understood as referring to (a) the United Kingdom, (b) Gibraltar, to the extent that Union law was applicable to it before the date of entry into force of the agreement, (c) the Channel Islands and the Isle of Man, to the extent that Union law was applicable to them before the date of entry into force of the agreement, (d) the Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus, to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas ....., and (e) a list of other Overseas Territories e.g. Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory etc.

Article 4 - Methods and principles relating to the effect, the implementation and the application of the Agreement.

The general aim of Article 4 is to ensure the applicability of Union law within the UK during the transition period.

It is provided that provisions of Union law made applicable by the agreement are to produce in the UK the same legal effects as those which they produce in the EU and its member states.  In essence, Union law continues to apply to the UK during the transition period.   Legal or natural persons will be able to rely on provisions in the agreement which meet the conditions required for direct effect under Union law.

The UK will ensure compliance through domestic primary legislation.  The UK government intends to bring forward legislation for this purpose and that would have to be in force by "Exit Day."  The legislation will have to include powers for the judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions.  Exactly how this will be achieved remains to be seen and is left to the UK legislature.  Questions may also arise regarding the constitutional position that Parliament cannot bind its successors.  We may have to return to this point.

Provisions in the agreement referring to Union law (or to concepts or provisions thereof) shall be interpreted and applied in accordance with the methods and general principles of Union law.

Provisions of the agreement referring to Union law (or to concepts or provisions thereof) shall in their implementation and application be interpreted in conformity with the relevant case law of the CJEU handed down before the end of the transition period.

In the interpretation and application of the agreement, the UK authorities (e.g. judiciary) "shall have due regard" to relevant case law of the CJEU handed down after the end of the transition period.

Hence, after the transition period, it is correct to say that Union law will still have some relevance but only in relation to interpretation and application of the agreement.  The UK authorities will take "due regard" of CJEU judgments which come after the transition period.

Article 5 - Good Faith - requires the EU and UK to ensure the fulfilment of the obligations arising from the agreement and they must refrain from measures which could jeopardise the objectives.

Article 6 - References to Union Law - This drafting of this article is rather cumbersome.  References to Union law in the agreement are to be understood as references to Union law, including as amended or replaced, as applicable on the last day of the transition period.  However, this does not apply to Part Four (Transition) or to Part 5 (Financial Provision) and, furthermore, it does not apply if the agreement provides otherwise.

Article 7 - References to the Union and to Member States - Essentially, this recognises that from Exit Day the UK will drop out of EU Institutions such as EU Council Parliament etc.

For the purposes of the agreement all references to Member States and competent authorities of Member States shall be understood as including the UK and its competent authorities, except as regards:

a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions;

(b) the participation in the decision-making and governance of the bodies, offices and agencies of the Union;

(c) the attendance in meetings of committees referred to in Article 3(2) of Regulation (EU) No182/2011 of the European Parliament and of the Council, of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement.

References in the agreement to the Union includes reference to Euratom.

Article 8 - Access to networks, information systems and databases.  UK access seems to be maintained during transition but, after that, it ceases unless otherwise provided.  Article 8 is therefore a general provision and it is expected that, after transition, there will be agreement for the UK to access various networks etc. but such access would be governed by specific agreements.

It now seems appropriate to look at Part Four (Transition) and that is the subject of the next post .....

No comments:

Post a comment