Now that Mrs May has seen off the challenge to her leadership of the Conservative Party, it may prove fruitful for all parties to take stock with where we are with the process of the UK leaving the EU – what some have called ‘Brexit’.
There are two stages in this process. There is the withdrawal from the EU itself and there is the negotiation of a new trade agreement between the UK and the EU. The latter cannot commence until after the UK has exited the EU but the parties can give some indication of their future intent. This is what the framework declaration does. The document that is intended to have legally binding effect is the Withdrawal Agreement which governs the terms on which the UK exits the EU. If there is no agreement, then there is a ‘cliff edge’ Brexit – with all that entails by way of possible shortages of food and medicine, lorry parks in Kent, uncertainty around the rights of UK citizens living and working in EU Member States.
The Withdrawal Agreement provides for an implementation period from exit day to 31.12.2020 during which time the UK will remain subject to all the rules and legislation of the EU but will not be able to participate in EU institutions – so no UK MEPs. In this period the UK and the EU will attempt to negotiate a trade deal. The UK will be free to negotiate trade deals with third party states but will be unable to implement them. The implementation period may be extended provided notice is given before 1 July 2020.
The three salient elements of the withdrawal agreement. (1) Reciprocal guarantees for the rights of UK citizens living and working in EU Member States and for citizens of EU Member States living and working in the UK. (2) Financial settlement of the UK’s accrued obligations as a Member of the UK, such as pensions for EU employees, in the period prior to exit day. This is to be paid as the obligations would have accrued had the UK remained a Member. Further financial payments will be required for the implementation period, including any extension. (3) A backstop in the event that no trade agreement has been reached by the end of the implementation period. This is contained in the Northern Ireland Protocol.
The third element is what is causing all the problems. At the end of the implementation period the UK as a whole would remain in a customs union with the EU and in addition Northern Ireland would be subject to some of the rules of the single market which would necessitate checks being carried out in the EU on certain classes of goods going into Northern Ireland.
The backstop is intended to be temporary and the Protocol states that it is not intended that it should form the basis of a permanent arrangement between the UK and the EU. On entering the backstop the UK would be no longer subject to the EU’s four freedoms, notably free movement of workers. The UK would no longer make payments to the UK other than in respect of its responsibility for accrued liabilities incurred during its period of membership. The UK would be constrained in acting on any trade deals with third party states as it would be prohibited from lowering tariffs below the EU’s common external tariff, and would also be prevented from obtaining a competitive advantage with the EU by lowering environmental standards, or labour and social standards, below those of the EU.
The backstop could be terminated by joint agreement of the UK and the EU or by reference to the arbitration proceeding established to deal with disputes arising under the agreement. It could not be unilaterally terminated by the UK. Although the technology for this does not currently exist, it is possible that in the future ‘maximum facilitation’ would be available to enable the necessary border checks without the creation of any hard border infrastructure. In this event, the rationale for the backstop would go and it would become possible for it to be terminated by either party either by reference to arbitration under the backstop procedure or by reference to the provisions of the Vienna Convention on the Law of Treaties 1969 that deal with the termination of treaties. It should be noted that the EU is unlikely to want the backstop to last for very long as it may give Northern Ireland, which will remain in the EU single market, an advantage over the Republic of Ireland. See paragraphs 20 and 21 of the Attorney General’s advice to the Prime Minister of 13 November 2019.
The question for any Prime Minister, whether they be Conservative, Labour, Liberal Democrat will be the same. Is there any alternative to the Withdrawal Agreement concluded by Prime Minister May? Absent any such alternative or agreement to the Withdrawal Agreement, the legal position is that there will be an abrupt exit from the EU at 23.00 on 29 March 2019 – with all the attendant chaos of trade disruption, shortages of food and medicines, lorry parks on the M20, chaos as to citizens’ rights.
Let us consider some of these alternatives.
– Norway plus. This cannot be negotiated now but could be on the table in the implementation period. It would require acceptance of freedom of movement of workers and continued financial contributions to the EU, albeit at a lower level than the UK’s contributions as a member of the EU, and would constrain the UK’s ability to conclude trade deals with third party states. To quote the last words of Kenneth Williams ‘Oh, what’s the bloody point?’ We might as well remain in the EU.
– Stay in the European Economic Area. We might argue that the UK remains a party to the European Economic Area Agreement on leaving the EU, but under article 126 this will have no effect. This provides: “The Agreement shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty, and to the territories of Iceland, the Principality of Liechtenstein and the Kingdom of Norway.” The Agreement would not apply in the territory of the UK. Furthermore, without a customs agreement there would still be the problem of the border in the Northern Ireland between the UK, a non-member state, and the Republic of Ireland, a member state.
– Revocation of the notice of withdrawal under article 50. The UK could stay in the EU either permanently or temporarily to buy time to renegotiate, although the latter option would seem to be ruled out by the caveat in the AG’s opinion that such withdrawal of the notice of withdrawal should not be ‘abusive’.
– Suspend the article 50 notice to allow more time for negotiation. Fine, if every other EU Member State agrees.
– Renegotiate the withdrawal agreement. The EU Member States have indicated that this will not happen. The most that seems likely is an insertion into the Framework Declaration of an intention to continue negotiating a trade agreement when the UK enters the backstop. Maybe some encouraging words about maximum facilitation when it comes into existence. However, who knows, Prime Minister May, might be able to pull a unicorn out of the hat – or Prime Minister Corbyn? This is what the Prime Minister has come back with today after her meeting with the EU>
“The EU made clear:
- that it is their firm determination to work speedily on a future relationship or alternative arrangements which ensure no hard border by 31 December 2020 so that the backstop will not need to be triggered.
- If the backstop was ever triggered, it would apply only temporarily and the EU would use its best endeavours to negotiate and conclude expeditiously a subsequent agreement that would replace the backstop.
- That the EU stands ready to embark on preparations so that negotiations on the future partnership can start as soon as possible.
As formal conclusions, these commitments have legal status and therefore should be welcomed.”
– Run a second referendum. This would require agreement on the questions to be asked (three or two?) and on the voting system to be used (first past the post or single transferable vote or alternative vote?). Time is tight, as the old song goes, so an extension to article 50 would be required, but not too long otherwise there is the problem of the scheduled elections to the European Parliament on 23 May 2019.
Parliament has to act. If it fails to do so, we have the ‘Thelma and Louise’ Brexit of crashing out without an agreement with the EU, as surely as the sun will rise on 30 March 2019.
 Ireland /Northern Ireland Protocol. Annex Four. Article 2.
 Ireland /Northern Ireland Protocol. Annex Four. Article 4.