Brexit withdrawal agreement more about politics than law
Analysis: Provision on backstop is clearly important for the British
British attorney general Geoffrey Cox has declined to change his legal advice on the withdrawal agreement and the backstop - throwing politics in the UK into utter confusion once again.
But this is more a matter of politics than it is of law.
Three documents were published Monday night to supplement the Withdrawal Treaty, and which will carry varying degrees of legal force. The first was a “joint instrument” – which presents an agreed interpretation of the Agreement and which could be relied upon in any court or arbitration hearings in the future in the event that relations between the two sides break down.
It is the joint instrument which contains what the UK maintains are legally binding changes to the backstop. Simply put, it offers a route for the UK to exit the backstop if the EU has persistently behaved unreasonably and unfairly in dragging its feet on the backstop and the future trade relationship. Crucially, however, that judgment is not for the UK to make unilaterally – it can only follow a finding made by the joint arbitration process set up by the treaty in the first place.
So do the changes agreed last night make it possible for the UK to unilaterally renounce the backstop if it feels like it? No.
But does it show a route out of the backstop if the EU seeks to trap the UK in the backstop indefinitely and capriciously? Yes.
How likely it is the EU would do this is another matter. But the provision is clearly important for the British. That’s more politics than it is law.
The second document is a joint EU-UK statement on the future relationship, which supplements the political declaration already agreed between the two sides.
What is most notable here is the degree of urgency that it injects into the talks on the future trading relationship – which will now commence immediately. The great fear of Brexiteers is that these talks will drag on for years while the UK – as they see it – remains shackled to the EU, bound to observe its rules while having no say over their application or formulation.
It restates the ambition to have the trade talks concluded by the end of next year – a deadline that many regard as highly ambitious. But the strength of the language in the statement will offer some comfort to the British and while it may not be legally actionable – it is full of ill-defined terms such as “expeditiously” and “at speed” – it will make the politics of the situation at Westminster easier for Mrs May.
The third document is the most contentious one. Dublin sources Monday night dismissed this as the UK “talking to itself”. The UK argues that this is not entirely true – it will lodge the declaration with the UN and the EU will not dispute this, and – in the event of the matter coming to law – this could be relied upon by the UK to bolster its case. The fact that Dublin was reportedly unhappy with the document last night adds weight to the UK’s view.
The document is a unilateral declaration made by the British government which gives its view of how it might exit the backstop if the EU and the UK cannot reach agreement on the future trading relationship. If this is the case – and therefore the backstop is triggered – the UK says it believes it can leave the backstop, but, crucially, under the terms of the existing agreement.
As noted above, this means that a joint arbitration panel must decide that the EU has been persistently acting in bad faith in the negotiations. In other words, the UK can leave unilaterally – but only after a joint arbitration committee decides that the EU is essentially violating the Withdrawal Agreement and the EU declines to stop doing so.
As a matter of law, that offers a unilateral exit mechanism. As a matter of politics, it seems an unlikely turn of events.