Brexit Bulletin―UK and EU exchange views on the Withdrawal Agreement and political declaration ahead of meaningful vote

As the Lords and the Commons prepared for their delayed votes on the Withdrawal Agreement and political declaration on the future UK/EU relationship, the Prime Minister made a final attempt to secure support for the deal, publishing correspondence with the Presidents of the European Commission and Council, setting out their respective assurances, clarifications and interpretations, with particular focus on the Northern Ireland backstop. Following previous publication of his legal advice on the issue, the Attorney General also gave an opinion, concluding that the Withdrawal Agreement represents the ‘only politically practicable and available means’ of securing the UK’s exit from the EU.

On 15 January 2019, MPs are finally due to vote on a motion approving the Withdrawal Agreement and political declaration on the future UK/EU relationship agreed in principle with the EU in November 2018. The following correspondence has been published by the government:

• Letter from the Prime Minister to President Juncker and President Tusk

• Response from President Juncker and President Tusk to the Prime Minister

• Letter from the Attorney General to the Prime Minister on the Northern Ireland Protocol

The Prime Minister’s letter highlights points raised during and after the December 2018 European Council, focusing on ‘concerns in the UK Parliament’ concerning the Withdrawal Agreement and political declaration. The letter focuses on concerns regarding delivery of the commitments in Northern Ireland, in particular the concern that the backstop arrangements for avoiding a hard border between Ireland and Northern Ireland could be triggered and subsist indefinitely. The letter sets out ‘clarifications and undertakings’ to avoid the backstop being used, for instance:

• agreement to enter negotiations on the future relationship as soon as the Withdrawal Agreement is signed

• prioritising talks on replacing the backstop with permanent arrangements

• making provision to apply the replacement arrangements provisionally pending ratification if necessary to avoid the backstop being triggered

The letter also sets out the government’s interpretation of the backstop provisions and seeks confirmation that that EU interpretation aligns.

The joint response from the Presidents of the European Commission and Council begins by noting that they are not in a position to agree to anything that changes or is inconsistent with the Withdrawal Agreement but are happy to confirm their understanding on behalf of the Commission and Council. Firstly, it points to the conclusions of the European Council (Article 50) on 13 December 2018, which decided on a number of additional assurances, in particular its firm commitment to work quickly during transition to negotiate alternative arrangements to avoid the backstop being triggered after the UK’s withdrawal. If the backstop was triggered, it would apply temporarily (and only as long as strictly necessary), before being superseded by a subsequent agreement ensuring that a hard border is avoided. In this case, the EU would use its ‘best endeavours’ to negotiate and conclude an agreement to replace the backstop, and would expect the same of the UK

While the Withdrawal Agreement and the political declaration do not have the same nature or legal effect, the EU views them as ‘part of the same negotiated package’ and may be published side by side in the Official Journal of the European Union ‘in a manner reflecting the link’ between the two texts as provided for in Article 50 of the Treaty on the European Union. As regards future negotiations, the joint response confirms the EU’s readiness to ‘engage’ on a work programme as soon as the UK Parliament signals its agreement in principle to the Withdrawal Agreement and the European Parliament has approved it. The Council will embark on preparations for a future partnership as soon as the Withdrawal Agreement is signed and the Commission would then make preparations so that negotiations could begin as soon as the UK has left the EU. The joint response from the Presidents of the European Commission and Council close by setting out the Commission’s interpretation of the Withdrawal Agreement and Protocol on Northern Ireland, to confirm a shared understanding of the Northern Ireland backstop.

The Attorney General’s letter followed the publication of his earlier advice (see further: LNB News 05/12/2018 103). It gives the view that the Council’s conclusions of 13 December 2018 do not change the Withdrawal Agreement but would have legal force in international law and be of relevance to the interpretation of the Withdrawal Agreement (the Northern Ireland in particular). Assurance from the Commission regarding its approach to any future negotiations would, in the Attorney General’s opinion, be useful to MPs making the political judgment as to the likelihood of the Northern Ireland backstop coming into effect. The Attorney General’s letter confirms his earlier conclusions that the balance of risk ‘favours the conclusion’ that the EU is unlikely to want to rely on the backstop

The Prime Minster gave statement to the House of Commons and also delivered a speech in Stoke-on-Trent, warning of ‘grave uncertainty’ if the deal is not approved, leading to one of two outcomes:

‘While no deal [Brexit] remains a serious risk, having observed events at Westminster over the last seven days, it is now my judgment that the more likely outcome is a paralysis in Parliament that risks there‪‪ being no Brexit.’

Source: Correspondence: Joint letter of President Tusk and President Juncker to Theresa May, Prime Minister of the United Kingdom

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