UK Government agrees additions to the Withdrawal Agreement

Posted in UK and EU legal framework The Withdrawal Agreement

The UK Government has agreed ‘legally binding’ changes to the draft Withdrawal Agreement in an effort to secure Parliamentary approval for the deal by which the UK will leave the EU.

Since the House of Commons voted to reject the draft Withdrawal Agreement in January 2019, the UK Government has been working secure changes to it. In particular, the Government has sought to ensure that the UK could not be trapped in the so-called backstop indefinitely, notwithstanding assurances from EU politicians that the EU does not wish for the backstop to apply indefinitely either.

The backstop, which is only intended to apply in the event that no other agreement is reached between the parties regarding future customs arrangements, is in effect an insurance option to prevent a hard border between Ireland and Northern Ireland. 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, albeit the draft also provides for more extensive regulatory alignment with regard to Northern Ireland which would mean additional checks at ports between Northern Ireland and the rest of the UK. It is also at odds with the Government’s intention that the UK will no longer be part of the Customs Union once it has left the EU.

Now, although the text of the draft Withdrawal Agreement has not been amended, two further documents have also been agreed.

The first is a Joint Instrument, which would be legally binding and sit alongside the draft Withdrawal Agreement. The Joint Instrument emphasises that the draft Withdrawal Agreement contains an obligation for the EU and the UK to “use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes the Irish backstop and stipulates that the UK and the EU would start negotiations on a subsequent agreement as soon as possible after Brexit. This includes seeking “alternative arrangements” for customs so as to prevent a hard border in Ireland.

Article 12 of the Joint Instrument stipulates that it would be inconsistent with the obligations of the UK and the EU “for either party to act with the objective of applying the Protocol indefinitely”. It further provides that if a party felt the other was so acting, it could invoke the dispute resolution provisions in Articles 167 to 181 of the draft Withdrawal Agreement, which provide for arbitration. The Instrument confirms that any ruling by the arbitration panel that a party acts with the objective of applying the Protocol indefinitely would be binding on the parties. The Instrument confirms that ultimately, “the aggrieved party would have the right to enact a unilateral, proportionate suspension of its obligations under the Withdrawal Agreement” unless and until the offending party has taken the necessary measures to comply with the ruling of the arbitration panel.

The second document is a Joint Statement supplementing and the Political Declaration as to the future relationship between the EU and the UK, which, as noted previously, sets out the framework for a future trade deal between the UK and the EU. The Joint Statement reiterates the desire of the EU and the UK to conclude an agreement regarding their future relationship, including replacing the backstop by alternative arrangements, by the end of the transition period (31 December 2020).

The question is whether the new documents, particularly the Joint Instrument, provide sufficient comfort for MPs to support the deal: the Attorney General had previously advised that under international law, the backstop “would endure indefinitely until a superseding agreement takes its place in whole or in part”. Although there is no provision allowing for unilateral exit from the back-stop, the changes are nevertheless designed to allay those concerns.

In addition, the UK Government issued a unilateral declaration reiterating that that the backstop is not intended to establish a permanent relationship between the UK and the EU. It further provides that if “it proves not to be possible to negotiate a subsequent agreement as envisaged in Article 2 of the Protocol, the United Kingdom records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations under the Protocol … and under the proviso that the UK will uphold its obligations under the 1998 Agreement in all its dimensions and under all circumstances and to avoid a hard border on the island of Ireland”.

As noted in our earlier post, Parliament will now vote on the draft Withdrawal Agreement (as augmented). If the deal is rejected, the Government is expected to table a motion to be voted on by Wednesday 13 March at the latest, asking if the House of Commons supports leaving the EU without a Withdrawal Agreement and a Political Declaration on the future EU/UK relationship 29 March. If Parliament rejects the notion of leaving without a deal, the Government will, on 14 March, bring forward a motion on whether Parliament wants to seek a short limited extension to Article 50 – albeit under the terms of Article 50, the consent of all EU Member States would be required for any such extension.

The legal opinion of the Attorney General on the two new documents has now been published. Whilst there is some comfort that the legally binding nature of the Joint Instrument and the content of Unilateral Declaration has reduced “the risk” of the United Kingston being trapped indefinitely by the backstop protocol arrangements, significantly the opinion confirms that the position otherwise remains unchanged in so far as the Protocol will “endure indefinitely in international law in the absence of a subsequent agreement” and the United Kingdom as the agreement currently stands, will have no “internationally lawful means of exiting the Protocol’s arrangements, save by agreement”.

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