Legal position on the Withdrawal Agreement

Posted in UK and EU legal framework The Withdrawal Agreement

The UK Government has published a paper entitled the Legal position on the Withdrawal Agreement. The paper is not, as MPs had pushed for, a copy of the legal advice that the Government had received. Rather, it provides a summary of the different aspects of the draft Withdrawal Agreement.

One of the most controversial aspects of the draft Withdrawal Agreement has been the so-called backstop, which would be used to ensure no hard border between Ireland and Northern Ireland in the event that no new agreement is reached between the EU and the UK by the end of the transition period. Under the terms of the draft Withdrawal Agreement, the backstop will be in the form of a “single customs territory” between the UK and the EU, which would cover all goods except fisheries. However, the draft also provides for more extensive regulatory alignment with regard to Northern Ireland in order to maintain "full alignment with those rules of the [EU’s] internal market and the customs union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the [Good Friday Agreement]”

While the paper reiterates that such a backstop is only intended to be temporary (and as set out in the draft Withdrawal Agreement, the parties will use their ‘best endeavours’ to achieve a new agreement), the paper confirms that the UK would not be able to withdraw from the backstop unilaterally: “The agreement does not contain any provision on its termination. In the absence of such a provision, it is not possible under international law for a party to withdraw from the agreement unilaterally”. Instead, any dispute will be referred to by the joint committee to arbitration, for example whether the parties had acted in good faith in accordance with article 5 of the draft Withdrawal Agreement.

Further, the paper confirms that should the transition period be extended, the UK will continue to have to make financial contributions: “the joint committee would decide on an appropriate financial contribution, taking into account that the UK would not be receiving receipts as a member state participating in the union programmes and activities committed under the next multi-annual financial framework”.

Notwithstanding the Prime Minister’s assurances that neither the UK nor the EU wants the backstop to come into effect, its open-ended design remains one of the most controversial aspects which will be debated by MPs before they vote whether or not to approve the draft Withdrawal Agreement.

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