EU Law Analysis: The second vote against the withdrawal agreement: what next?

Professor Steve Peers, University
of Essex
The second attempt to approve the
withdrawal agreement has been defeated again in the House of Commons. What were
the main legal issues in this second attempt – and what is the way forward, if
MPs were asked to vote on five
a)      The
, as agreed in November, which has not been changed (see my
overview of the agreement here)
b)      The
non-binding Political
on the future relationship with the EU, which has not been
changed (see my detailed annotation of the declaration here)
Assessing the new texts in
ascending order of importance, the Joint Statement on the Political
is mainly about the timing of future talks, an issue which was
addressed in the Political Declaration already in some detail. It is useful
that the Commission commits to proposing provisional application of future
post-Brexit EU/UK treaties, to speed up their application pending national
ratification if needed, but not really surprising as this is common EU
There’s a potentially important point
on the future UK legal framework:
5. Fourth, and
in the context of open and fair competition, the Union notes the United
Kingdom’s intention to ensure that its social and employment standards and its
environmental standards do not regress from those in place at the end of the
transition period, and to provide its Parliament the opportunity to consider
future changes in Union law in these areas.
However, a unilateral intention
is not an international law guarantee, and the possibility to consider future
EU legislation is a weak level of commitment. It also leaves out the impact of future
CJEU case law. On this issue – and on the prospect of a future customs union –
the UK government might obtain some Labour party support for the withdrawal
agreement if it went further. However, going further on the prospect of a
future customs union would split the Conservative party.
In any event, the political
declaration, on top of its non-binding status, is vague or non-committal about
a number of key aspects of the future relationship. It could be revised along
the lines of my suggested amendments in my annotation, to provide for firmer
and more precise commitments.
The unilateral UK government statement
is not unusual as such, since there are often unilateral declarations attached
to treaties. It might have some value as regards interpreting the treaty, as
the Attorney-General’s advice
points out. But in any event, on a close reading it does not assert very much
The first paragraph is an
expression of intention about quickly starting talks on the future
relationship. This matches the commitments in the political declaration on the
future partnership. The second paragraph simply reiterates the withdrawal
agreement text that the Northern Ireland backstop is not intended to be
permanent. In this context, the third paragraph states the UK’s view that if
the EU acts in bad faith when negotiating a replacement for the backstop, the
UK could bring a claim under the dispute settlement provisions of the
withdrawal agreement that could lead to the disapplication of the backstop. In
any event, the UK will avoid a hard border and comply with its obligations
under the Good Friday Agreement.
This claim simply reiterates the
UK’s capacity to ask the arbitrators under the withdrawal agreement to rule on
the alleged bad faith by the EU, and to exercise the remedy of disapplication
of parts of the treaty that would potentially be allowed under the agreement in
the event that it won its case (and assuming that the arbitrators did not find,
upon request by the EU, that such a response by the UK was disproportionate).
This claim does not alter the legal position however: the UK was always able to
make such a claim under the withdrawal agreement, and the unilateral
declaration does not mean that the arbitrators would be obliged to agree with
the UK that bad faith existed or that the disapplication of the backstop was
Finally, as for the joint
, it is legally binding based on the parties’ express agreement
to this effect.  Indeed, as the text
points out, under Article 31 of the Vienna
Convention on the Law of Treaties
the parties can agree additional texts
supplementing a treaty, which are influential when interpreting that treaty. There’s
a recent example of such a practice as regards the similar joint instrument
agreed between the EU and Canada, which is already referred
by an Advocate-General of the CJEU.
But the issue is the substance of
the joint instrument. Part A simply spells out some details of the mechanics of
the negotiations aimed to replace the backstop. It adds, similarly to the UK
unilateral declaration, that it would be in bad faith to act to attempt to keep
the backstop applicable indefinitely. The dispute settlement process could be
invoked in such a case, with the possibility of unilateral suspension of part
of the agreement in the event of a breach.
Part B sets out safeguards for
Northern Ireland.  The withdrawal
agreement does not alter the Good Friday Agreement, including the role of the
devolved Northern Ireland government. It clarifies that not all new EU measures
will be added automatically to the Protocol. Finally, Part C notes that the
future relationship between the UK and the EU need not have the same
territorial scope as the withdrawal agreement.
The instrument therefore confirms
the interpretation of certain potentially arguable aspects of the withdrawal
agreement, in particular whether the claim of bad faith regarding negotiation of
future treaties is justiciable before the agreement’s dispute settlement
system. However, as the Attorney-General and others have noted (see Michael
on this blog, and David Anderson
and others
), this does not amount to a unilateral right to exit the
backstop by the UK, as some would wish to see. As a result, the vote was lost.
The Commons is due to vote on a
no deal outcome and on a request for an extension. Some believe that an
election or another referendum is possible (both would require an extension of
UK membership; the latter would entail an extension of membership long enough
to require UK participation in the European Parliament elections in late May,
according to the Commission
). An election would not necessarily provide a decisive result.
It’s impossible to predict
developments, but several key points should be emphasised. First of all, Remainers
should keep in mind that a vote against the withdrawal agreement is not a ‘vote
to stop Brexit’. Only revocation of the notification of withdrawal would do
that. If there is insufficient support for revocation by the Prime Minister/Parliament
or to hold another referendum, then Brexit will take place. Indeed, in that
scenario a vote against the
withdrawal agreement is actually a vote for no deal
Secondly, a vote against no deal
does not stop a no deal outcome happening. It’s politically relevant, but
legally irrelevant. No deal is the default outcome. It will happen unless a
withdrawal agreement is approved or the notification is revoked.
Thirdly, an extension delays a no
deal outcome, but is not a resolution in itself. The same basic choices between
no deal, a withdrawal agreement and revocation will still exist, but at a later
Barring a spectacular U-turn by
the EU, in my view the most obvious landing zone for a package which the
Commons might support is set out above: a future customs union with additional
workers’ rights protections, set out slightly more precisely as the outcome in
the political declaration. This is only achievable on the basis of Remainers accepting
that Brexit is going to happen in the absence of support to overturn it, along
with either the Conservative party splitting or a Labour government following
an election. Whether any of these outcomes is plausible remains to be seen.
Barnard & Peers: chapter 27
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