Michael Dougan is Professor of European Law in University of Liverpool Law School
Summary: The legal form of the “Instrument relating to the Withdrawal Agreement” and / or the “Joint Statement supplementing the Political Declaration” is of little importance. The real question is whether the new measures make any meaningful changes to the withdrawal package which was politically endorsed in November 2018 and now awaits approval in the Commons.
The Instrument largely restates existing provisions of the Withdrawal Agreement without making any appreciable additions or changes. In particular: the “backstop” is still capable of being activated and of remaining operational on a potentially indefinite basis, unless and until the EU and UK agree to its amendment, replacement or removal. There is still no legally binding or enforceable time limit on the “backstop”. There is still no mechanism by which the UK is entitled unilaterally to terminate the “backstop”. The idea mooted in the Instrument, that the UK could suspend operation of the “backstop” in retaliation for the EU being found in breach of its duty to negotiate in good faith / use best endeavours, is not new. In the real world, such a prospect should be considered almost entirely theoretical, if not altogether fanciful.
The Joint Statement seeks to flesh out the Political Declaration, which is itself neither legally binding nor legally enforceable. The new provisions are almost entirely about the more detailed process for launching and conducting the future EU-UK negotiations. They offer no meaningful guarantees about the timescales or indeed outcomes of those negotiations.
As for the Prime Minster’s suggestion of a Unilateral Declaration reserving the UK’s ability to disapply the “backstop” in certain circumstances, apparently regardless of its obligations under the Withdrawal Agreement: it seems remarkable for the Government openly to threaten to breach an international treaty even before it has been approved and ratified. In reality, one might again argue that such a threat rings rather hollow, particularly given the potential adverse implications for Northern Ireland. But it still sits ill with the aspirations and reputation of “Global Britain” for the Government to adopt such a cavalier attitude towards respect for and compliance with international law.
The Prime Minister’s statement in Strasbourg on 11 March 2019 focuses largely on relatively superficial issues about the legal form of the “Instrument relating to the Withdrawal Agreement” and / or the “Joint Statement supplementing the Political Declaration”; rather than on the more important question of their legal substance, i.e. their actual impact upon the terms of the existing withdrawal package and their capacity for effective legal enforcement by the parties.
In reality, the legal form of these documents is not especially significant. They can be described in various ways as “having legal force” or having “binding character” etc. But that is of little consequence, if the substantive content of the documents adds / changes nothing to / of what exists already in the withdrawal package; of if they contain promises / obligations which are incapable of effective legal enforcement between the EU and the UK.
The real question is therefore: do the Instrument and / or Joint Statement make any meaningful changes to the withdrawal package which was politically endorsed in November 2018 and now awaits approval from the House of Commons?
The Withdrawal Agreement: Potential Impact of the Instrument
Much of the text of the Instrument simply recalls / reiterates the existing provisions of the Withdrawal Agreement (as supplemented by subsequent documents such as the UK Government Commitments to Northern Ireland and its Integral Place in the United Kingdom (9 January 2019) and the Exchange of Letters between the UK Prime Minister and the Presidents of the European Council and the European Commission (14 January 2019)). Only the following points are worth further comment.
The Instrument effectively acknowledges that underlying reality, in its discussion of compliance with / enforcement of the parties’ commitments to seek to replace the existing “backstop” with alternative arrangements.
The Political Declaration: Potential Impact of the Joint Statement
Much of the text of the Joint Statement simply recalls / reiterates the existing provisions of the Political Declaration (as supplemented by subsequent documents such as the UK Government Commitments to Northern Ireland and its Integral Place in the United Kingdom (9 January 2019) and the Exchange of Letters between the UK Prime Minister and the Presidents of the European Council and the European Commission (14 January 2019)).
By and large, the text merely describes in more detail how the Parties plan to pursue their common aspiration for negotiating a new future relationship, e.g. as regards the establishment of thematic priorities and indicative timescales, the pursuit of parallel negotiating strands, the relationship with more specific negotiations aimed at replacing the existing “backstop” etc.
Of course, neither the Political Declaration nor the Joint Statement are legally enforceable texts. But in any case, the additional provisions contained in the Joint Statement are almost entirely about the process of conducting future negotiations. They do not and could not offer any guarantees about the outcomes of those negotiations: whether any agreement on the future relationship will be reached at all, whether such agreement might be concluded within any particular timescale, whether the agreement would be approved and ratified by the competent institutions on each side, let alone the substantive content of any final agreement on the future relationship.
The only provision which touches upon the substance of the principles intended to govern negotiations for the future relationship is paragraph 5: the EU notes the UK’s intention to ensure that the latter’s social, employment and environmental standards do not regress from those in place at the end of the transitional period and to provide Parliament with the opportunity to consider future changes in Union law in these areas. Even setting aside the limited significance / value of those commitments as a matter of domestic UK constitutional law, paragraph 5 is almost entirely inconsequential as regards its substantive relevance to the legal status or enforceable content of the existing withdrawal package.
A suggested “Unilateral Declaration” by the UK
The Prime Minister’s statement in Strasbourg provides that the UK will make a Unilateral Declaration that, if the “backstop” comes into use and discussions on the future relationship break down, so that there is no prospect of subsequent agreement, the UK takes the position that there would be nothing to prevent the UK instigating measures that would ultimately disapply the “backstop”.
On one level, that statement is entirely banal: of course, if the UK were determined to adopt internal legal measures to disapply the “backstop”, there is nothing that any external actor could do to prevent the UK’s domestic institutions from so acting. The EU could have recourse to whatever avenues and remedies are available under international law, e.g. dispute settlement under the Withdrawal Agreement – but the EU cannot “prevent” the UK from acting however the UK pleases within the UK’s own internal constitutional sphere.
On another level, however, the Prime Minister’s statement is quite remarkable: the UK is openly and blatantly threatening to breach its clear obligations under a legally binding international agreement, even before that agreement has been finally approved and ratified. In reality, one might again argue that this threat rings rather hollow: if the UK were unilaterally to disapply the “backstop” in such circumstances, without any adequate alternative arrangements already in place, it could once more lead directly to the erection of a customs and regulatory frontier between Northern Ireland and the Republic of Ireland. Even if the UK were unconcerned about the international legal repercussions under the Withdrawal Agreement or indeed the Joint Report, the UK would still have to manage the inevitable economic, social and political problems such a course of action would entail for Northern Ireland and no doubt beyond.
In any event, it sits rather ill with the ambition and reputation of “Global Britain” for the Government to adopt such a proudly cavalier attitude towards respect for and compliance with international law.
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