A mere 17 days are left to "Exit Day" - 11 pm on 29 March 2019. The House of Commons will debate the Prime Minister's motion asking that the House approves for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018 the following FIVE documents laid before the House on Monday 11 March 2019:
(1) the negotiated withdrawal agreement titled ‘Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’;
(2) the framework for the future relationship titled ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’;
(3) the legally binding joint instrument titled ‘Instrument relating to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’, which reduces the risk the UK could be deliberately held in the Northern Ireland backstop indefinitely and commits the UK and the EU to work to replace the backstop with alternative arrangements by December 2020;
(4) the unilateral declaration by the UK titled ‘Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the Northern Ireland Protocol’, setting out the sovereign action the UK would take to provide assurance that the backstop would only be applied temporarily; and
(5) the supplement to the framework for the future relationship titled ‘Joint Statement supplementing the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland’, setting out commitments by the UK and the EU to expedite the negotiation and bringing into force of their future relationship.
A number of amendments to the Prime Minister's motion have been tabled. These are left aside for the purposes of this post. (Note: In the event no amendments were selected by the Speaker ).
Items 3, 4 and 5 in the list have come about from a flurry of discussion with the EU over the last few weeks including a trip by the Prime Minister to Strasbourg on 11 March 2019. Read the PM's statement at Strasbourg 11 March. The aim of all this discussion was to try to address concerns expressed in the House of Commons that the Ireland/Northern Ireland "backstop" arrangements in the Withdrawal Agreement could become a permanent feature if agreement for the future relationship cannot be secured by the end of the transition (implementation) period. Those concerns were the principal - but maybe not only - reason why the Commons rejected the Withdrawal Agreement / Political Declaration on 15 January - previous post.
It is extraordinary that the House is being asked to vote on a package of documents having had very minimal time to consider them.
It is crystal clear that the new documentation has not altered the fact that the backstop remains in the Withdrawal Agreement and that it will not prevent the backstop coming into effect if the transition period ends without a future agreement.
If the House votes in favour of the motion then the UK will move forward to Brexit with the Withdrawal Agreement / Political declaration in place. Whether 29 March remains as Exit Day would have to be decided because it will be necessary to enact legislation to give effect to the Withdrawal Agreement. A possibility is that an extension of Article 50 - (perhaps to about mid-May) - could be requested to allow time for this legislation to be enacted.
The documents:
The Department for Exiting the EU (DExEU) has published the documents.
The Attorney-General has issued an updated opinion concerning the legal position resulting from the documentation. The advice concludes:
"17. I now consider that the legally binding provisions of the Joint Instrument and the content of the Unilateral Declaration reduce the risk that the United Kingdom could be indefinitely and involuntarily detained within the Protocol’s provisions at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU.
18. It may be thought that if both parties deploy a sincere desire to reach agreement and the necessary diligence, flexibility and goodwill implied by the amplified duties set out in the Joint Instrument, it is highly unlikely that a satisfactory subsequent agreement to replace the Protocol will not be concluded. But as I have previously advised, that is a political judgment, which, given the mutual incentives of the parties and the available options and competing risks, I remain strongly of the view it is right to make.
19. However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement."
Before the Attorney's view was published, David Anderson QC (and others) issued a "thumbs down" opinion - HERE.
It is worth noting the possible effects in international law of Declarations and also Article 31 of the Vienna Convention on the Law of Treaties which enables certain text to be brought into play in the event of any dispute regarding treaty interpretation.
Declarations:
"Declarations" are often made by States when entering into treaties. Authoritative guidance on the preconditions and binding impact of Unilateral Declarations can be found in the ‘Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations’ adopted by the International Law Commission (ILC) in 2006.
The Withdrawal Agreement will (if ratified) become a Treaty between the UK and the EU. Article 31 of the Vienna Convention on the Law of Treaties deals with interpretation:
The 11 March Instrument relating to the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community appears to come within Art 31(2)(b).
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