European Court and not London will decide if Brexit deal binding

Court likely to decide UK is locked into regulatory alignment even without deal

The noises out of London have been mixed. Ministers there seem to think that the magic phrase "nothing is agreed until everything is agreed" overrides the rest of last Friday's agreement with the European Union. But London cannot dictate the meaning of the deal which has allowed Brexit negotiations proceed to the next step.

It does not matter what the UK government thinks the agreement means - what matters is what the Court of Justice of the European Union (CJEU) says it means. This agreement is being reached under article 50 and so will fall within the court’s jurisdiction.

With this in mind I have selected the paragraphs that are the subject of dispute and have tried to give them the meaning which I think the CJEU will find them to have.

Orderly withdrawal

“1. This report . . . records the progress made in the first phase of negotiations under article 50 . . . on the UK’s orderly withdrawal from the union.


“2. Under the caveat that nothing is agreed until everything is agreed, the joint commitments set out below in this joint report shall be reflected in the withdrawal agreement in full detail. This does not prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations, and is without prejudice to discussions on the framework of the future relationship.”

“96. This report is put forward with a view to the meeting of the European Council . . . It is also agreed by the UK on the condition of an overall agreement under article 50 on the UK’s withdrawal, taking into account the framework for the future relationship, including an agreement as early as possible in 2018 on transitional arrangements.”

It is clear that the agreement does not cover any interim arrangements following 2019 when the UK leaves the EU although it envisages that these may be put in place (“transitional arrangements”). These will have to be agreed in the phase-two talks, because putting the pieces in place for a full trade deal is likely to take years. Even if the EU-Canada deal is used as a template to speed things up, an agreement on the final arrangements is still going to take time.

Exit bill

It is probably best to understand this wording as being both preliminary and final. It is preliminary as to the things that have yet to be agreed (eg the interim and final trade deals of the future) but final as to the way of calculating the exit bill and what will happen between the UK and Ireland if an acceptable trade agreement cannot be reached between the UK and the EU.

Paragraph 96 could mean that if a final agreement is not reached then the report is valueless. But the definite arrangements in paragraphs 49 and 50 show that the provisions on Ireland are intended to have permanent effect because specific language trumps the general language used in paragraphs two and 96.

“49. The [UK] remains committed to . . . its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The [UK’s] intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the [UK] will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the [UK] will maintain full alignment with those rules of the internal market and the customs union which, now or in the future, support North-South co-operation, the all-island economy and the protection of the 1998 agreement.

“50. In the absence of agreed solutions, as set out in the previous paragraph, the [UK] will ensure that no new regulatory barriers develop between [Northern Ireland] and the rest of the [UK], unless, consistent with the 1998 agreement, the [Northern Ireland] Executive and Assembly agree that distinct arrangements are appropriate for [Northern Ireland]. In all circumstances, the [UK] will continue to ensure the same unfettered access for [Northern Ireland’s] businesses to the whole of the [UK] internal market.”

Three outcomes

These paragraphs are something of a mouthful but envisage three possible outcomes.

Outcome one: the EU and UK reach agreement and specify what the arrangements will be for the UK-Irish Border. This is what “the overall EU-UK relationship” is referring to.

Outcome two: if this does not happen, the UK will have to put forward “specific solutions to address the unique circumstances of the island of Ireland”.

Outcome three: if these solutions cannot be agreed, then there is a fall-back position which has two parts.

The first is the island of Ireland part: the UK will maintain full alignment with those rules of the internal market and the customs union which “now and in the future” support the current Anglo-Irish agreement, structures and markets.

The second is the Northern Ireland and the UK part: the UK will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the UK subject to Northern Irish agreement to the contrary.

The inevitable conclusion of all this is that if an all-Ireland approach has to be taken and if Northern Ireland will not face new regulatory hurdles, then what happens in Northern Ireland will be most likely to happen in the rest of the UK.

If the EU formally accepts the joint report this week then outcome three will apply if no other solution can be found. The UK will be locked in.

Dominic De Saulles is a senior lecturer at Cardiff Law School