BREXIT UPDATE 11: Guest Post by Deborah Maccoby

March 13, 2019

In Uncategorized


I ended Brexit Update 10 with the news that the Maybot was flying to Strasbourg yesterday evening for last-minute talks with the President of the European Commission, Jean-Claude Juncker.  With great fanfare, the Maybot claimed at a press conference late last night that those talks had produced “legally-binding” changes to the backstop.[1]  In fact, as Jeremy Corbyn pointed out today in the House of Commons, this claim was “smoke and mirrors”.

Three new documents have been issued as a result of the dramatic last-minute, late-night talks: 1) A Joint Instrument; 2) A Unilateral Declaration by the UK; 3) A Joint Statement attached to the Political Declaration on the Future Relationship.

The alleged changes to the backstop are not the same as those proposed by Cox’s Codpiece (despite the name of the Joint Instrument; it is remarkable how Brexit, despite – or perhaps because of — its  arcane legal complexity, lends itself to sexual innuendo — maybe this tendency should be called Sexit?)  Cox’s Codpiece, it seems, proposed to give additional powers to an arbitration panel due to be set up after the ratification of the Brexit Deal.  According to Cox’s plan, the arbitration panel would be given the ability to rule that the UK could leave the backstop, which would mean that this decision would no longer depend on joint agreement by the UK and EU.  This idea was rejected by Michel Barnier, the EU’s chief negotiator.[2]

Today (March 12) Sir Geoffrey Cox, the Attorney General, began his statement to the House by – on the surface — endorsing May’s claim that she had negotiated “legally-binding” changes to the backstop: “Mr Speaker, last night in Strasbourg, the Prime Minister secured legally binding changes that strengthen and improve the Withdrawal Agreement and the Political Declaration”.  But the statement as it went on made it clear that the actual legal advice contradicted this upbeat claim.  Commenting on the first two documents, Sir Geoffrey said:

“Mr Speaker, let me say frankly what in my opinion these documents do not do.  They are not about a situation where, despite the parties properly fulfilling the duties of good faith and best endeavours, they cannot reach an agreement on a future relationship…..Were such a situation to arise….let me make it clear, the legal risk as I set it out in my letter of the 13th of November [ie his legal advice about the backstop at that time] remains unchanged. “[3]

If we look at the legal opinion, its essence is that, if the EU can be proved not to have acted in good faith and with its best endeavours, then the UK would have the right to leave the backstop.  But the UK would first have to submit its claim that the EU had acted in bad faith and without its best endeavours to an arbitration tribunal, so there is no guarantee even then that the case would be upheld.  And if talks break down despite both parties having acted in good faith and with their best endeavours, the risk that the UK would be trapped indefinitely in the backstop is unchanged.  Here is the last paragraph of the legal advice (by the Protocol, he means the backstop):

“the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise [ie, talks during the transition period on the future relationship break down so that the UK has to remain indefinitely within the backstop], the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement”.[4]

In other words, the only improvement that emerges from the legal advice is that there is a “reduced risk” (my emphasis) of the UK remaining in the backstop – but only in the circumstances that an arbitration tribunal upholds the UK’s claim that talks have broken down because of a lack of good faith and best endeavours on the part of the EU.  If talks break down not because of any lack of good faith or best endeavours by either party but “simply because of intractable differences”, then “the legal risk” that the UK would have to stay indefinitely within the backstop, with no unilateral exit mechanism, “remains the same”.  There are rumours that pressure was put by the government on Sir Geoffrey to change this opinion – but, to his credit, he refused; he only agreed to put a decorative spin on his advice.  But, as Jeremy Corbyn pointed out in his speech before the vote, it is very unlikely that future talks on the backstop would break down because of deliberate intent on the part of the EU leaders.

The Speaker did not select any of the amendments that were tabled; so only the government’s motion was under debate.  In section (3), the operative words — as Jeremy Corbyn pointed out in his speech before the vote — are “reduces” and “deliberately”:

That this House approves for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018 the following documents laid before the House on Monday 11 March 2019:

(1) the negotiated withdrawal agreement titled ‘Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’;

(2) the framework for the future relationship titled ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’;

(3) the legally binding joint instrument titled ‘Instrument relating to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’, which reduces the risk the UK could be deliberately held in the Northern Ireland backstop indefinitely and commits the UK and the EU to work to replace the backstop with alternative arrangements by December 2020;

(4) the unilateral declaration by the UK titled ‘Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the Northern Ireland Protocol’, setting out the sovereign action the UK would take to provide assurance that the backstop would only be applied temporarily; and

(5) the supplement to the framework for the future relationship titled ‘Joint Statement supplementing the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland’, setting out commitments by the UK and the EU to expedite the negotiation and bringing into force of their future relationship.

The motion was again defeated: – by 149 votes; a smaller margin than before but still huge: the ayes: 242; the noes: 391.  After studying the documents and the legal advice, the DUP and many right wing Brexiteers again voted against the deal.

After the second defeat of her deal was announced, Theresa May again might have been expected to resign – at least any other Prime Minister in her situation might have been expected to do so — but did not.  She announced a free vote tomorrow when Parliament votes on whether or not to accept No Deal – ie MPs can vote with their own consciences rather than having to obey a “whip” or orders imposed by their Party.  It is almost certain that MPS will vote against No Deal tomorrow; and they are likely to vote in favour of an extension on Thursday.

Jeremy Corbyn also spoke after the defeat, saying that the Prime Minister “has run down the clock and now the clock has run out on her”.  He added that “maybe it’s time for a General Election”.  There is in fact some speculation that, in a last desperate gamble, May herself could decide to go to the people, either in a referendum on her deal or in a snap General Election.  A General Election in the near future seems more and more to be the only way out of the Brexit morass.