Cambridge UniversityThe two-year time-limit in Article 50 of the Treaty on European Union has come and gone.  It is now possible that no withdrawal agreement between the European Council and the UK will be concluded.  This means that the UK would leave the EU in catastrophic circumstances on April 12.  An interesting final irony would be that the UK would be leaving the EU on the basis of a legal howler.

The Wightman ruling of the European Court of Justice on 10 December 2018 recognised the unilateral right of the UK to revoke the notification of its intention to withdraw from the EU.

The reasoning of the Court was based on the idea that, although Article 50 does not create such a right explicitly, it must be inherent in the very nature of the notification of a mere intention to withdraw.  Such an intention may change over the course of time, for example, in the light of the bitter experience of an attempt to give effect to the withdrawal in practice.

If no transitional agreement is concluded, the notification could certainly be revoked up and until 12 April.   If, contrary to expectations, a transitional agreement, on present terms or newly negotiated terms, were concluded with the European Council, the logic of the Court’s ruling could mean that the notification of intention to withdraw could be revoked at any time until the UK withdrawal is fully and finally in effect, even during the implementation of the transitional agreement.

If the UK’s notification of its intention to withdraw from the EU is not revoked before 12 April or 22 May, a significant legal problem would arise.

The power to extend the period of negotiation under Article 50 is designed to switch off the two-year time-limit that would otherwise cause the automatic withdrawal of a member state.  The ­agreement of 21 March between the Prime Minister and the European Council extended the period of negotiation and thereby prevented automatic withdrawal on 29 March.  As a result of the agreement of 21 March, the two-year time-limit in Article 50 measured from March 2017 ceased to have legal significance.

But the agreement of 21 March does something else, beyond extending the period of negotiation and cancelling the 29 March deadline.  It imposes time-limits triggering the automatic withdrawal of the UK on 12 April (without a transitional agreement) or 22 May (with a transitional agreement).

It is fairly obvious that those new time-limits are an abuse of the power contained in Article 50 to extend the period of negotiation.  The amazingly short new time-limits clearly do not allow for a genuine further negotiation.  They are a virtual amendment of the time-limit in Article 50, replacing 29 March with 12 April and 22 May.

What lawyers call the object and purpose of the power in Article 50 allowing an extension of the period of negotiation is to allow us to avoid the disaster of an automatic withdrawal, not to prevent further genuine negotiation.  But that is precisely the effect of the new time-limits in the agreement of 21 March.  They are liable to cause what the power in Article 50 is designed to avoid.

The use of the power in Article 50 to impose time-limits with this ulterior purpose cannot conceivably be lawful, even if it takes the form of an ad hoc agreement between the UK and the European Council.

Imposing time-limits that lead to automatic UK withdrawal without genuine further negotiation would require a formal amendment of Article 50.  This can only be achieved by the amendment procedures contained in the Treaty on European Union and the Treaty on the Functioning of the European Union.  Amending EU treaties can take many years to complete.

If the UK notification of its intention to withdraw from the EU is not revoked before 12 April or 22 May, it would be possible to conclude a new ad hoc agreement with the European Council creating the possibility of genuine further negotiation, with or without time-limits that are compatible with the object and purpose of Article 50.

It is difficult to say how or when a senior national court or the European Court of Justice could apply their forensic minds to this problem of the legality of the new time-limits.  It might be after the illegitimate automatic withdrawal had occurred.

If the time-limits in the agreement of 21 March were held to be unlawful and invalid under EU law and UK law, the UK would then continue to be, or would retroactively become again, a member state of the EU.

Of course, the government of the UK, as an improbably surviving EU member state, could thereafter notify the European Council of a newly formed UK intention to withdraw.  Article 50 would then be applicable again, with its two-year time-limit from the date of a new notification, together with the power to extend the period of negotiation.  We could have any number of reprises of Brexit.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University.

(Suggested citation: P. Allott, ‘Unexpected Denouement. The UK Remains in the EU by Mistake. The Brexit Saga Could Run and Run’, U.K. Const. L. Blog (26th Mar. 2019) (available at https://ukconstitutionallaw.org/))

Committee on MinistersLegislation to enable Brexit is progressing through Parliament. This includes the Immigration and Social Security Bill, the Fisheries Bill, the Financial Services (Implementation of Legislation) Bill, and the Healthcare (International Arrangements) Bill. One curious aspect of this raft of new law is that, at the same time these Bills are making their way through Parliament, statutory instruments (SIs) addressing some of the very same subject matters are also being laid. While this approach may find justification in some contexts, we argue in this post that the particular way this is being executed in some circumstances seems broadly at odds with the Government’s own stated approach to the process.

When the European Union (Withdrawal) Act 2018 (EUWA) was progressing through Parliament, the Government was at pains to reassure those concerned about the breath of the delegated powers within the Act that the SIs made under it would not be ‘a vehicle for policy changes.’ It was stated that the powers under EUWA only gave ‘the Government the necessary power to correct or remove the laws that would otherwise not function properly once we have left the EU.’ Such expectations have been reinforced in various ways and in a range of forums since. For instance, the Government has given evidence to at least one Committee that it cannot make some of the changes to UK law proposed by civil society organisations via SI because policy changes are not permitted within the EUWA powers. In contrast to what the Government has suggested repeatedly, the reality of the exercise of the EUWA powers is that Brexit SIs are being used to, at least in some places, give effect to significant policy changes.

One example of this gap between expectations and reality is The Immigration, Nationality and Asylum (EU Exit) Regulations 2019 (‘INA Regulations’), which make significant changes to the immigration system. The Regulations revoke swathes of retained direct EU legislation, including European Union Regulation 604/2013 (commonly known as the Dublin III Regulation). This Regulation is the mechanism by which the UK currently returns asylum seekers to other European countries and under which asylum seekers may be transferred to the UK to have their asylum claims considered. The INA Regulations also change the grounds on which a decision can be made to restrict admission to, or residence in the UK of an EEA national or their family member, or to deport an EEA national or their family. They replace the current deportation thresholds, laid down in the Immigration (European Economic Area) Regulations 2016 and in EU law, with the domestic law threshold currently applicable to non-EEA nationals, in relation to conduct occurring after the Regulations come into force. That includes a presumption in favour of deportation for any EEA national sentenced to 12 months’ imprisonment or longer, irrespective of the length or nature of their residence in the UK. This is another significant change to the treatment of EEA nationals.

There are a range of obvious possible impacts of the policy shift effected by the SI and even the Explanatory Note (Explanatory Notes are not typically ‘good practice’ examples of clarity) points out that, by deleting the Dublin III Regulation, the SI may have an impact on net asylum transfers to the United Kingdom. Brexit requires legal change but it is odd that the INA Regulations were laid on 11 February 2019, several weeks after the Immigration and Social Security Bill had been introduced in the Commons, and the day before its first day of debate in Committee. In fact, the changes to the deportation threshold for EEA nationals are described in the Explanatory Note as ‘pending the passage and implementation of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill’. It is difficult to think of a reason—aside from political expediency—why such changes, carrying obvious policy implications, could not have been given effect through the Bill, which has been the site of significant deliberation and engagement. This was highlighted by Afzal Khan MP when the Regulations were debated in the House of Commons. He argued he would vote against the changes, despite supporting some of the measures, because ‘the Government should be doing those things in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which is currently before Parliament.’ Meanwhile, the Immigration Bill is itself almost wholly constituted of delegated powers.

Another example of departure from the expected course of action can be seen in how the Government has used the Social Security Coordination Regulations to delete the equal treatment provision in Article 4 of the EU Social Security Coordination Regulation (Regulation 883/2004/EC). The equal treatment provision provides that if an EU citizen has a social security entitlement (because for example they have paid into social security schemes in the past) they will be treated in the same way as a British national when accessing that scheme. This removal appears to sit uncomfortably with the Government’s policy paper Citizens’ Rights – EU citizens in the UK and UK nationals in the EU, which stated that EU nationals lawfully resident in the UK on ‘exit day’ ‘will be able to continue to access in country benefits and services on broadly the same terms as now.’ The Explanatory Note accompanying the draft regulations does not telegraph the removal of the equal treatment provision and, as far as we have seen, the Government has not explained its rationale for the change. The European Scrutiny Committee, in its 53rd report released on 5 February 2019, has criticised this removal, stating:  ‘[i]t is unclear to us how this commitment to the ‘equal treatment’ principle would be affected by the draft Statutory Instrument to prepare Regulation 883/2004 for the UK Statute Book in a ‘no deal’ scenario, which would explicitly remove Article 4.’ This is all the more strange when the Explanatory Notes to the Immigration and Social Security Bill appear to assume that the equal treatment provision would be retained: ‘The SSC Regulations provide for equal treatment of those in scope.’ Not only is this change not being given effect in primary legislation, it is a change being made via SI that appears to contradict the Explanatory Note to the very Bill in which it should arguably be included.

What law ought to be made by SI and what law ought to be made by primary legislation is a complex question. The traditional distinction is that technical change is done via SI with matters of significant policy being done in primary legislation (see e.g. Cabinet Office, Guide to Making Legislation (2017); Committee on Ministers’ Powers, Report (Cmd 4060, 1932)). This is, in many ways, a porous distinction and one which could only ever be described as loosely related to current practice. It is clear, however, that the approach to EUWA powers is, at least in multiple important places, inconsistent with the promised course of action. The result is that important policy changes are more likely to go undeliberated at a time when the risk of that happening is already very high.

Alexandra Sinclair is a Research Fellow at the Public Law Project. She is leading on the SIFT Project, which, in partnership with the Hansard Society, is tracking qualitative trends in Brexit SIs.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.

(Suggested citation: A. Sinclair and J. Tomlinson, ‘Brexit, Primary Legislation, and Statutory Instruments: Everything in Its Right Place?’, U.K. Const. L. Blog (25th Mar. 2019) (available at https://ukconstitutionallaw.org/))

Weekly round-up of events

This week’s event announcement is below.

~~~

Martin Loughlin

ICON-S British-Irish Chapter

2019 Annual Conference

The United Kingdom’s Withdrawal from the European Union (?)

Domestic and European Constitutional Implications

Download the Full Programme Here (pdf)

University of Strathclyde, 24 – 25 April 2019

The UK’s decision to withdraw from the EU involves a major change to – and major test of – the UK’s constitutional arrangements, the precise implications of which remain unclear.  It is also an event of profound significance for the UK’s closest neighbour, Ireland, and for the EU itself.  Barring a decision to delay or revoke the Article 50 process, the UK will cease to be a member of the EU on 29 March 2019.  This conference will mark the UK’s withdrawal from the EU by reflecting on the constitutional legacy (for the UK, Ireland, and the EU) of 45 years of UK membership of the EU, the constitutional implications of the conduct of the withdrawal process, the likely impact of Brexit on the UK’s domestic constitutional order, and the constitutional significance of post-Brexit relationships with Ireland, with the EU, with new trading partners, and with other external organisations, such as the Council of Europe.

Keynote and plenary speakers

  • Professor Martin Loughlin, London School of Economics
  • Professor Sionaidh Douglas-Scott, Queen Mary University of London
  • Professor Jo Murkens, London School of Economics
  • Professor Rosa Greaves, University of Glasgow, University of Oslo

Registration

Conference fee: £40 (£20 student rate). Optional conference dinner: £40.

Registration is now open. Please register here.

Association of Human Rights InstitutesThroughout the two years of Brexit debates following Article 50 notification, the UK Government and Parliament consistently have failed to recognise that even if EU law is no longer applicable after Brexit, the UK is still bound to a broad gamut of rules under international law. Apparently attempting to appease Brexiteers, on 11 March Theresa May offered a unilateral statement to the EU on the UK interpretation of the Protocol on Ireland/Northern Ireland in relation to the backstop set out therein. In a similar vein, two days later, Geoffrey Cox MP argued that article 62 of the Vienna Convention on the Law of Treaties (Vienna Convention) offered an easy out of the Withdrawal Agreement and Northern Ireland backstop if a more acceptable arrangement could not be reached in the coming years. Now pundits, politicians, and academics alike are expending great energy trying to ascertain what effect the unilateral statement or article 62 may have on the Withdrawal Agreement in future. Put simply, the statement has no legal effect. Article 62 is not a panacea and both the UK government and Parliament would do well to stop relying on concepts in international law to cure all that is disagreeable with the Brexit process. International law supports the precise opposite positions asserted in both of these circumstances. If the aim in leaving the EU is to ‘be global’ without the filter of EU regulations, the application of the international rules (in which the UK had a heavy hand in drafting) must be understood as starting, rather than end, points for negotiating future relationships.

Modification of International Agreements

There are two different theories on the nature of the Withdrawal Agreement. First, it could be viewed as a bilateral treaty between the EU and the UK. Second, the Withdrawal Agreement could be understood as a multilateral treaty between the UK and the individual members of the EU. In either event, the unilateral statement has no legal value and more aptly is framed as a political manoeuvre aimed at getting Brexiteers to support the Withdrawal Agreement during the vote at Westminster last week. The statement purported to offer the UK’s interpretation of its options in the event that agreement on the Irish border cannot be reached by the deadline of 31 December 2020 (or a future extended deadline date).

The statement explains that the UK’s view is that it may unilaterally ‘instigat[e] measures that could ultimately lead to disapplication of obligations under the Protocol, in accordance with Part Six, Title III of the Withdrawal Agreement or Article 20 of the Protocol’ in the event of ‘a breach of Article 5 [good faith] of the Withdrawal Agreement by the Union’. A general reading of Article 20 of the Protocol reveals that either the EU or the UK may notify the other party that it deems parts of the Protocol no longer applicable and this would be discussed by a Joint Committee within 6 months of the notification or be referred for arbitration pursuant to Part 6, Title III of the Withdrawal Agreement. Thus, this is not exactly a statement that delivers any interpretation that necessarily falls afoul of the Agreement as it only signposts that it may ‘instigate measures’. If the UK moved to disapply any of the obligations under the Protocol in future in reliance on the statement, then this would no doubt modify the legal effect of the agreement and, therefore, the ‘interpretative declaration’ would then be subject to review as a reservation pursuant to the Vienna Convention.

The Vienna Convention defines a reservation as ‘a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’ (article 2(1)(d)). The Vienna Convention embodies the customary rules of treaty law that apply to the examination of all treaties unless other rules have been expressly indicated in the agreement. In this case, no other applicable rules have been set out in the Agreement.

If the statement was intended to have any legal effect in a potential future dispute, as in change any potential obligation under the Withdrawal Agreement, the only unilateral option to alter treaty obligations following conclusion of the agreement is through a reservation. All international agreements/treaties may be subject to unilateral change after conclusion by means of a reservation, as long as the reservation is not prohibited by the agreement/treaty or does not violate the object and purpose of the agreement. The Vienna Convention rules govern whether the statement has any legal effect but we need not go much further than the definition of a reservation to make a determination on the potential of the 11 March statement to have future legal effect.

However one reads the statement (as in trying to determine what the UK is attempting to clarify) the Vienna Convention demands that to have legal effect, it must be made ‘when signing, ratifying, accepting, approving or acceding to a treaty’. The same rules would apply to an ‘interpretative declaration’ if the statement ‘purports to exclude or to modify the legal effect of certain provisions of the treaty’ because it would effectively be a reservation – the name attached to the statement is not important, it is the purported effect that triggers the application of the rules.

Pursuant to the text of the Withdrawal Agreement, it was concluded/approved on 25 November 2018 and in terms of its legal operation, it otherwise only speaks to ‘entry into force’ on 30 March 2019.  Ratification, in the strictest sense of the word, is not necessary for the Agreement to enter into force as in a traditional treaty. This is not uncommon in bilateral treaties or treaties between a small number of states. The intervening period between conclusion and entry into force has effectively given the UK time to fulfil its internal procedures, and though markedly different to those normally applicable to treaty approval under the Constitutional Reform and Governance Act 2010 (which replaced the Ponsonby Rule), this is of no importance in the consideration of the UK statement. No state may ‘invoke internal law as justification for its failure to perform a treaty’ (Vienna Convention article 27). What happens internally in the UK does not change the agreement, unless there is notification that the UK internal process did not confirm the agreement – a no deal – and then the agreement does not take effect.

As no further positive action is required for the Withdrawal Agreement to take effect, it will become a binding agreement in the absence of notification that the UK has internal disagreement and, therefore, it seems that the time in which a reservation could be made passed on 25 November 2018. Even if read as a conditional interpretative declaration, it would still need to have been made when the agreement was ‘approved’ because any purported change to the legal effect of the agreement would trigger the reservations analysis.

Fundamental Change of Circumstances

Following the second defeat of the Withdrawal Agreement in Parliament, MPs then began seeking international legal rules that would promise reprieve from a perpetual Irish backstop. Again, the constant companion of treaty lawyers was co-opted to salve certain MPs’ disdain for the idea of a permanent relationship with the EU due to the Irish border. This time, Geoffrey Cox MP invoked a rarely used treaty termination option, fundamental change of circumstances, which is codified in Vienna Convention article 62. Again, a UK politician sought to use a rule that is much more complex than it seems on the page.

At the international level, the claim of a right to terminate a treaty is just that – a claim. It is not automatic, it must be adjudicated and the International Court of Justice demonstrated in the Gabčíkovo-Nagymaros case (Hungary v Slovakia) that to be successful in claiming this right, a very high bar must be reached. Furthermore, the change must be one that was not anticipated at the time of the agreement (article 62, para 1). Thus, suggesting article 62 as a potential ‘get out’ clause for the future renders it an unavailable option because the potential perpetuation of the Irish backstop is anticipated and, therefore, runs afoul of article 62.  Not to mention that implementing a treaty while simultaneously exploring how to extricate the UK from it would breach the most fundamental rule of treaty law – pacta sunt servanda – which demands that treaties be performed in good faith (Vienna Convention article 26). Suggestions that the UK would have unilateral termination in mind even before the agreement enters into force does not suggest good faith. Entering international agreements in a post-Brexit landscape will prove more difficult if the UK gets a reputation for looking for the ‘get-out’ clause before the agreement takes effect.

It seems that despite these attempts to appease those tired of non-British regulation, the unilateral statement on the UK interpretation of the Protocol on Ireland/Northern Ireland could never have legal effect, if that is what was intended. Nor is it remotely plausible that article 62 could be successfully invoked to unilaterally terminate the Irish backstop provisions in the Withdrawal Agreement. These are simply further reminders of the UK’s failure to appreciate that regardless of EU membership there are many international rules still applicable to the UK and all sovereign nations, including those of treaty law. It also suggests that a future of unchecked, unilateral UK posturing is not the best way to promote Britain as being ‘open for business’.

Dr Kasey McCall-Smith, Lecturer in Public International Law and LLM in Human Rights, Programme Director, University of Edinburgh; Executive Chair, Association of Human Rights Institutes (AHRI).

(Suggested citation: K. McCall-Smith, ‘The Realities of Being Global: Treaty Law and Brexit’, U.K. Const. L. Blog (20th Mar. 2019) (available at https://ukconstitutionallaw.org/))

Summary

  • Government strategy thrown into disarray by Speaker’s ruling that Parliament cannot vote on the May withdrawal deal again
  • The threat of no deal Brexit on 29 March has been reduced, but not entirely removed
  • The threat of no deal Brexit at some point in the future is still there, but remains small
  • Brexit will almost certainly be delayed, at least until May / June, but more likely for longer
  • Longer delay would be likely to lead to a “softer” Brexit with closer alignment to the EU
  • Determining the future EU-UK trade relationship remains heavily dependent on arrangements over the Irish border
  • These will form the baseline for all other UK trade relationships, including the UK-US FTA

 “Confusion now hath made his masterpiece”  Shakespeare: Macbeth Act II, Scene 3

What has happened?

  • Monday 11th:  Theresa May made a late night dash to Strasbourg to meet Commission President Juncker, and returned with what she said was a legal improvement to the Irish border backstop, making it easier for the UK to withdraw.
  • Tuesday 12th:  Early hopes that momentum could build towards the vote on the PM’s withdrawal deal were dashed when her colleague the Attorney-General published his advice:  while the PM had secured stronger exit rights in the event of demonstrable bad faith by the EU, the improvement secured by the PM did not change his core legal advice on the risk of the UK being “trapped” in the backstop.
    • Parliament voted by 391 votes to 242 (a majority of 149) to reject the PM’s withdrawal deal:  a significant improvement on the historic 230 majority against on January 15th (39 MPs switched sides, including some prominent Brexiteers), but still one of the largest majorities against a Government proposal.
  • Wednesday 13th:  Parliament debated a Government motion to rule out a no deal Brexit, but also noting that no deal remains the default in the absence of a deal, which was then amended (by a majority of 4 votes) to rule out no deal in any circumstances, turning the Government against it.  The amended motion passed by a majority of 43 (321 to 278) with a number of Ministers abstaining rather than voting against.  The motion has no legal force, but is a strong expression of Parliamentary opinion which the Government cannot simply ignore.
    • At the beginning of the day, the Government published its tariff plan for a no deal Brexit (87% of imports to be tariff free) – produced with minimal consultation of business – and its plan for the Irish border (which could be characterised as a combination of smugglers’ free-for-all and an honesty box so unobtrusive and far from the border as to give no offence)
  • Thursday 14th:  Parliament debated a Government motion to request an extension to the Article 50 timetable until the end of June, so long as Parliament has approved the Brexit deal, or if Parliament has not approved the Brexit deal the Government will need a longer extension, thus requiring the UK to participate in the European Parliament elections in May.  The motion was approved (412 to 202 votes) after a number of amendments failed, including one (by just 2 votes) which would have given Parliament the power to hold a series of indicative votes on alternative Brexit models, and one (by a wide margin) calling for a further referendum.
  • Monday 19th:  the Speaker ruled – following Parliamentary convention – that Parliament could not vote twice on a proposition that was the same or substantially the same:  “a demonstrable change to the proposition would be required” for there to be a further vote on the PM’s withdrawal deal.  “For something to be different it has to be fundamentally different, not in terms of wording but in terms of substance.”
    • The Government has announced that it will bring forward a Statutory Instrument to make the necessary change to UK law to allow an extension to the Article 50 timetable.

 

What happens next?

According to the Government’s plan, the withdrawal deal would have come back for a further meaningful vote in the first part of this week.  It was already looking difficult for the Government to turn the 75 MPs they would need to switch votes, when the Speaker ruled that there must be a demonstrable change to the Government’s withdrawal deal (in this blog, by “withdrawal deal” means Withdrawal Agreement – the proposed Treaty – and the Political Declaration on the future relationship between the UK and the EU).  The Speaker is understood not to have given the Government any notice of his ruling.  It is open to the Government to bring the same issue for decision in a future session of Parliament.

Formally, the legal position remains that, in the absence of anything else, the UK will leave the EU on 29th March.  Unless the UK decides to rescind the Article 50 notice, and effectively cancel the Brexit process (which the Government has ruled out doing), for the Brexit date to change, two things have to happen:

  • The EU has to agree to an extension to the Article 50 process.  This is on the agenda for the European Council meeting this week, on 21st March.  The European Council can only decide to extend the process by unanimity.  The UK – and the Prime Minister particularly – will come under great pressure to specify the purpose of the extension.  Then there is the question for how long.  In the view of some jurists, if the UK is a member of the EU still on 23rd May, it must participate in the European Parliament elections.  But the Parliament does not convene until 2nd July, so the UK’s failure to elect MEPs will have no practical effect until then.  A strict interpretation would limit an extension to 22 May, but the EU may judge there to be no risk to any challenge to the validity of the Parliament so long as the UK is no longer a member by the time the Parliament convenes.  However it is clear that any extension beyond 1st July puts the question of UK participation in the European elections squarely on the table, in addition to whatever other conditions the European Council decides to impose.
  • UK law (the European Union Withdrawal Act) has to be changed,  which requires a Statutory Instrument – proposed by the Government – to be approved by both Houses of Parliament.

“The report of my death was an exaggeration”  Mark Twain

The Government’s plan of course relied on Parliament reversing majorities of 230 and 149 against the PM’s withdrawal deal.  The withdrawal deal has been pronounced dead several times by numerous MPs and commentators, but it is proving remarkably resilient.  It may still be premature to pronounce it dead, though the Speaker’s intervention has certainly blown a large hole in its life-support system.  Frankfurter Allgemeine Zeitung asked at the end of last week whether it is a zombie or a phoenix – it is clearly now in zombie state, but do not be surprised if it re-emerges at some point in the future.  Government Ministers are still talking about the possibility of a further vote, and the procedural books are doubtless being scoured for a way to make that happen.  Assuming change is necessary, it will take longer:  of the key elements of the deal, the Withdrawal Agreement is the hardest to change.  Achieving substantial change, as well as finding alternative ways to address the Irish border backstop, can more easily be done by putting more substance into the Political Declaration – given the complexion of Parliament, that process is however more likely to lead to further challenges to the UK’s red lines, and a softer Brexit.

 

So where does it all leave us?

Parliament has asserted itself, but has not yet succeeded in taking control.  The Speaker has asserted himself and dropped a bomb on Downing Street.  The Prime Minister’s authority in her Cabinet, party and Parliament has been seriously – perhaps fatally – eroded.  Last week saw four Cabinet Ministers defy a three-line whip and keep their jobs, and a Cabinet Minister closing a debate with a strong argument to Parliament to support the Government’s proposal for a realistic extension to Brexit and then voting against it himself.  This week has already seen the Government fail to anticipate the Speaker upholding long-standing Parliamentary precedent (dating back to 2nd April 1604) and so deny the Prime Minister her preferred  strategy of forcing Parliament into a choice between the withdrawal deal and no deal Brexit on the one hand, or long delay on the other.  Unless the Government can find some way to get round the Speaker’s ruling, the choice is now clear:  long delay (which may yet lead back to the withdrawal deal in time), or no deal Brexit.  The first is the expressed will of Parliament;  the second is the law of the land.

The question now for British Parliamentarians is whether you try to define the future relationship between the UK and the EU before exit or after.  There has been much focus on the lack of unilateral withdrawal provisions from the Irish border backstop.  But the lack of unilateral ability to withdraw from or radically deviate from the Good Friday Agreement is the underlying determinant (and no British politician would argue that the UK should go back on the GFA).  The GFA does not require there to be no hard border, but there is much argument that the re-establishment of hard border infrastructure would mark a strongly regressive step in the implementation of the GFA, and as such would be incompatible with the GFA.  Hence the UK Government’s rather preposterous no deal border policy:  you simply leave the border wide open.

The Brexiteers have welcomed the Speaker’s decision:  it removes them from the immediate trap the Government had set for them.  It opens the way for a “no deal” Brexit, which some of them want.  However, given the clear majority in Parliament against a “no deal” Brexit, and the Speaker’s ability to use the flexibility of Parliamentary convention, the Speaker’s ruling also makes the prospects for a longer delay to the Artcile 50 process, and more Parliamentary input to the definition of the future relationship – both of which point strongly towards softer Brexit model – more likely.  The Government has said it will propose the necessary changes to UK law to delay the Brexit date:  this is likely to command a strong Parliamentary majority.  Parliamentary opinion would define the future relationship in ways likely to lead to closer integration with the EU than the Brexiteers would want.  The Brexiteers favour a relationship along the lines of the EU-Canada FTA, but even this would need a very high degree of regulatory and tariff alignment in order to minimize the Irish border impact (unless new technology provides an answer at some point in the future).  Labour argues for a renewed customs union, which would constrain the UK’s ability to run its own trade policy.  Pro-European MPs favour the European Economic Area (Norway) – EEA, which would raise questions about the point of Brexit (Norway’s position is best described as a waypoint on the way in, not an exit route).  Increasing focus is being paid to a cross-party model called “Common Market 2.0”, which would involve the UK going into the European Free Trade Area – EFTA (ironically founded by the UK in 1960).  EFTA currently has four members, three of which (Norway, Iceland and Liechtenstein) are members of the EEA; Switzerland is not.  In fact, if Parliament could agree the future direction quickly, the adaptations to the current withdrawal package need not take very long:  the Withdrawal Agreement would remain;  the Political Direction on the future relationship would be amended, and by doing so provide a pre-agreed route out of the Irish border backstop (and the substantive change the Speaker has ruled necessary).  If that is a pre-existing structure (EEA or EFTA) there would be much greater comfort about sorting out the details later.  If it is a wholly new FTA, there is much more uncertainty and hence in the mind of the Brexiteers scope for the EU to leverage its strength and veto over the route out of the backstop.

 

Meanwhile, there’s another party involved in this process….

Over in the EU, the UK’s Parliamentary contortions have given rise to exasperation and irritation.  The Prime Minister will write to the European Council requesting an extension to the Article 50 process, which will be debated at the Council’s meeting on 21st March.  While the EU is unlikely to refuse the UK’s request (and thus precipitate a “no deal” Brexit), the debate is unlikely to be a comfortable one for the Prime Minister.  It would not be unreasonable for the EU leaders – who have lost faith in Theresa May as a negotiating partner – to expect her to be clear about the purpose of the extension:  simply giving more time to allow the UK’s parliamentary stalemate to continue is very unlikely to command support.  If the Prime Minister is unable to give a satisfactory description of the purpose of the extension, it is likely that the EU will make any agreement to extension conditional.

Summary

  • Government strategy thrown into disarray by Speaker’s ruling that Parliament cannot vote on the May withdrawal deal again
  • The threat of no deal Brexit on 29 March has been reduced, but not entirely removed
  • The threat of no deal Brexit at some point in the future is still there, but remains small
  • Brexit will almost certainly be delayed, at least until May / June, but more likely for longer
  • Longer delay would be likely to lead to a “softer” Brexit with closer alignment to the EU
  • Determining the future EU-UK trade relationship remains heavily dependent on arrangements over the Irish border
  • These will form the baseline for all other UK trade relationships, including the UK-US FTA

 “Confusion now hath made his masterpiece”  Shakespeare: Macbeth Act II, Scene 3

What has happened?

  • Monday 11th:  Theresa May made a late night dash to Strasbourg to meet Commission President Juncker, and returned with what she said was a legal improvement to the Irish border backstop, making it easier for the UK to withdraw.
  • Tuesday 12th:  Early hopes that momentum could build towards the vote on the PM’s withdrawal deal were dashed when her colleague the Attorney-General published his advice:  while the PM had secured stronger exit rights in the event of demonstrable bad faith by the EU, the improvement secured by the PM did not change his core legal advice on the risk of the UK being “trapped” in the backstop.
    • Parliament voted by 391 votes to 242 (a majority of 149) to reject the PM’s withdrawal deal:  a significant improvement on the historic 230 majority against on January 15th (39 MPs switched sides, including some prominent Brexiteers), but still one of the largest majorities against a Government proposal.
  • Wednesday 13th:  Parliament debated a Government motion to rule out a no deal Brexit, but also noting that no deal remains the default in the absence of a deal, which was then amended (by a majority of 4 votes) to rule out no deal in any circumstances, turning the Government against it.  The amended motion passed by a majority of 43 (321 to 278) with a number of Ministers abstaining rather than voting against.  The motion has no legal force, but is a strong expression of Parliamentary opinion which the Government cannot simply ignore.
    • At the beginning of the day, the Government published its tariff plan for a no deal Brexit (87% of imports to be tariff free) – produced with minimal consultation of business – and its plan for the Irish border (which could be characterised as a combination of smugglers’ free-for-all and an honesty box so unobtrusive and far from the border as to give no offence)
  • Thursday 14th:  Parliament debated a Government motion to request an extension to the Article 50 timetable until the end of June, so long as Parliament has approved the Brexit deal, or if Parliament has not approved the Brexit deal the Government will need a longer extension, thus requiring the UK to participate in the European Parliament elections in May.  The motion was approved (412 to 202 votes) after a number of amendments failed, including one (by just 2 votes) which would have given Parliament the power to hold a series of indicative votes on alternative Brexit models, and one (by a wide margin) calling for a further referendum.
  • Monday 19th:  the Speaker ruled – following Parliamentary convention – that Parliament could not vote twice on a proposition that was the same or substantially the same:  “a demonstrable change to the proposition would be required” for there to be a further vote on the PM’s withdrawal deal.  “For something to be different it has to be fundamentally different, not in terms of wording but in terms of substance.”
    • The Government has announced that it will bring forward a Statutory Instrument to make the necessary change to UK law to allow an extension to the Article 50 timetable.

 

What happens next?

According to the Government’s plan, the withdrawal deal would have come back for a further meaningful vote in the first part of this week.  It was already looking difficult for the Government to turn the 75 MPs they would need to switch votes, when the Speaker ruled that there must be a demonstrable change to the Government’s withdrawal deal (in this blog, by “withdrawal deal” means Withdrawal Agreement – the proposed Treaty – and the Political Declaration on the future relationship between the UK and the EU).  The Speaker is understood not to have given the Government any notice of his ruling.  It is open to the Government to bring the same issue for decision in a future session of Parliament.

Formally, the legal position remains that, in the absence of anything else, the UK will leave the EU on 29th March.  Unless the UK decides to rescind the Article 50 notice, and effectively cancel the Brexit process (which the Government has ruled out doing), for the Brexit date to change, two things have to happen:

  • The EU has to agree to an extension to the Article 50 process.  This is on the agenda for the European Council meeting this week, on 21st March.  The European Council can only decide to extend the process by unanimity.  The UK – and the Prime Minister particularly – will come under great pressure to specify the purpose of the extension.  Then there is the question for how long.  In the view of some jurists, if the UK is a member of the EU still on 23rd May, it must participate in the European Parliament elections.  But the Parliament does not convene until 2nd July, so the UK’s failure to elect MEPs will have no practical effect until then.  A strict interpretation would limit an extension to 22 May, but the EU may judge there to be no risk to any challenge to the validity of the Parliament so long as the UK is no longer a member by the time the Parliament convenes.  However it is clear that any extension beyond 1st July puts the question of UK participation in the European elections squarely on the table, in addition to whatever other conditions the European Council decides to impose.
  • UK law (the European Union Withdrawal Act) has to be changed,  which requires a Statutory Instrument – proposed by the Government – to be approved by both Houses of Parliament.

“The report of my death was an exaggeration”  Mark Twain

The Government’s plan of course relied on Parliament reversing majorities of 230 and 149 against the PM’s withdrawal deal.  The withdrawal deal has been pronounced dead several times by numerous MPs and commentators, but it is proving remarkably resilient.  It may still be premature to pronounce it dead, though the Speaker’s intervention has certainly blown a large hole in its life-support system.  Frankfurter Allgemeine Zeitung asked at the end of last week whether it is a zombie or a phoenix – it is clearly now in zombie state, but do not be surprised if it re-emerges at some point in the future.  Government Ministers are still talking about the possibility of a further vote, and the procedural books are doubtless being scoured for a way to make that happen.  Assuming change is necessary, it will take longer:  of the key elements of the deal, the Withdrawal Agreement is the hardest to change.  Achieving substantial change, as well as finding alternative ways to address the Irish border backstop, can more easily be done by putting more substance into the Political Declaration – given the complexion of Parliament, that process is however more likely to lead to further challenges to the UK’s red lines, and a softer Brexit.

 

So where does it all leave us?

Parliament has asserted itself, but has not yet succeeded in taking control.  The Speaker has asserted himself and dropped a bomb on Downing Street.  The Prime Minister’s authority in her Cabinet, party and Parliament has been seriously – perhaps fatally – eroded.  Last week saw four Cabinet Ministers defy a three-line whip and keep their jobs, and a Cabinet Minister closing a debate with a strong argument to Parliament to support the Government’s proposal for a realistic extension to Brexit and then voting against it himself.  This week has already seen the Government fail to anticipate the Speaker upholding long-standing Parliamentary precedent (dating back to 2nd April 1604) and so deny the Prime Minister her preferred  strategy of forcing Parliament into a choice between the withdrawal deal and no deal Brexit on the one hand, or long delay on the other.  Unless the Government can find some way to get round the Speaker’s ruling, the choice is now clear:  long delay (which may yet lead back to the withdrawal deal in time), or no deal Brexit.  The first is the expressed will of Parliament;  the second is the law of the land.

The question now for British Parliamentarians is whether you try to define the future relationship between the UK and the EU before exit or after.  There has been much focus on the lack of unilateral withdrawal provisions from the Irish border backstop.  But the lack of unilateral ability to withdraw from or radically deviate from the Good Friday Agreement is the underlying determinant (and no British politician would argue that the UK should go back on the GFA).  The GFA does not require there to be no hard border, but there is much argument that the re-establishment of hard border infrastructure would mark a strongly regressive step in the implementation of the GFA, and as such would be incompatible with the GFA.  Hence the UK Government’s rather preposterous no deal border policy:  you simply leave the border wide open.

The Brexiteers have welcomed the Speaker’s decision:  it removes them from the immediate trap the Government had set for them.  It opens the way for a “no deal” Brexit, which some of them want.  However, given the clear majority in Parliament against a “no deal” Brexit, and the Speaker’s ability to use the flexibility of Parliamentary convention, the Speaker’s ruling also makes the prospects for a longer delay to the Artcile 50 process, and more Parliamentary input to the definition of the future relationship – both of which point strongly towards softer Brexit model – more likely.  The Government has said it will propose the necessary changes to UK law to delay the Brexit date:  this is likely to command a strong Parliamentary majority.  Parliamentary opinion would define the future relationship in ways likely to lead to closer integration with the EU than the Brexiteers would want.  The Brexiteers favour a relationship along the lines of the EU-Canada FTA, but even this would need a very high degree of regulatory and tariff alignment in order to minimize the Irish border impact (unless new technology provides an answer at some point in the future).  Labour argues for a renewed customs union, which would constrain the UK’s ability to run its own trade policy.  Pro-European MPs favour the European Economic Area (Norway) – EEA, which would raise questions about the point of Brexit (Norway’s position is best described as a waypoint on the way in, not an exit route).  Increasing focus is being paid to a cross-party model called “Common Market 2.0”, which would involve the UK going into the European Free Trade Area – EFTA (ironically founded by the UK in 1960).  EFTA currently has four members, three of which (Norway, Iceland and Liechtenstein) are members of the EEA; Switzerland is not.  In fact, if Parliament could agree the future direction quickly, the adaptations to the current withdrawal package need not take very long:  the Withdrawal Agreement would remain;  the Political Direction on the future relationship would be amended, and by doing so provide a pre-agreed route out of the Irish border backstop (and the substantive change the Speaker has ruled necessary).  If that is a pre-existing structure (EEA or EFTA) there would be much greater comfort about sorting out the details later.  If it is a wholly new FTA, there is much more uncertainty and hence in the mind of the Brexiteers scope for the EU to leverage its strength and veto over the route out of the backstop.

 

Meanwhile, there’s another party involved in this process….

Over in the EU, the UK’s Parliamentary contortions have given rise to exasperation and irritation.  The Prime Minister will write to the European Council requesting an extension to the Article 50 process, which will be debated at the Council’s meeting on 21st March.  While the EU is unlikely to refuse the UK’s request (and thus precipitate a “no deal” Brexit), the debate is unlikely to be a comfortable one for the Prime Minister.  It would not be unreasonable for the EU leaders – who have lost faith in Theresa May as a negotiating partner – to expect her to be clear about the purpose of the extension:  simply giving more time to allow the UK’s parliamentary stalemate to continue is very unlikely to command support.  If the Prime Minister is unable to give a satisfactory description of the purpose of the extension, it is likely that the EU will make any agreement to extension conditional.

Recommended news

© 2019 Brexit and Ireland - All Rights Reserved. Individual site feeds info belong to individual site holders.

Follow us: