Brexit and Legal Assurances

What of the papers circulated by the Government last night? Answer: the EU still has plenty wriggle room in relation to the backstop.

Warning: this is written without going back into the detail of the withdrawal documents already in play, although a good enough job can be done looking at the most recent material self-standing. And this is written without knowing the conclusions of the "Star Chamber".

As ever, the devil is in the detail.

The document is 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. It has a main section and three short appendices, A, B and C.

I will only comment on provisions relevant to exiting the backstop. An overview comment is that there is a lot of reiteration of what is already in place. The issue, contrary to much comment this morning, is not so much whether the commitments have legal effect but as to what is the extent of the legal commitments.

Main section: The Union and the United Kingdom

Third para: The parties do not wish the backstop solution to become applicable. The parties are determined to replace the backstop with a permanent agreement that avoids a hard border between Northern Ireland and the Republic and retains the UK's territorial integrity (ie retaining the Union).

This is merely a general statement of intent. 

Fourth para: The Protocol on Ireland/Northern Ireland (the backstop arrangements) will be subject to regular reviews to consider whether it is still necessary or could cease to apply in whole or in part.

Merely an agreement to keep talking.

Sixth para: The instrument (see title given above) has legal force and a binding character. 

Yes, but to what effect.

Appendix A: Negotiations on the future agreement and replacement of the Protocol (backstop) in whole or part

1. The parties recall their commitment to ensure, in full mutual respect and good faith, the fulfilment of the obligations in the Withdrawal Agreement.

First note "recall". There is nothing new here. The words look good but in the words alone there is nothing to prevent disagreement in good faith on a myriad of issues that will arise at the next stage.

3. Restatement of the article in the Protocol committing the parties to use best endeavours to conclude by 31 December 2020 an agreement which supersedes the Protocol in whole or part.

First note "restatement". Best endeavours in legal terms has been defined to require a party to do all that reasonable persons reasonably could do in the circumstances. That leaves a lot of scope for arguing about reasonableness.

4. An example is given that a systematic refusal to take into consideration adverse proposals or interests, would be incompatible with the the parties' obligations under the Protocol and the Withdrawal Agreement. 

First, being picky (and slightly sceptical), "systematic" means a continuing course of action - not so easy to prove. Take into consideration leaves lots of room for manoeuvre: it does not mean that you can't equally take your own interests into consideration.

5. The parties will start negotiations as soon as possible after withdrawal. The negotiations will be conducted as a matter of priority. Efforts will be redoubled should negotiations not be concluded within one year after withdrawal.

So despite numbered para 3 above, there is already an acknowledgement that the negotiations could run beyond 31.12.2020

6. The parties are committed to working speedily on a subsequent ageement that establishes alternative arrangements by 31 December 2020, so that the backstop will not need to be triggered.

Helpful by itself, but read it alongside the other wording and you will see that it doesn't add anything.

7. A negotiation track will be established immediately after ratification of the Withdrawal Agreement.

Nice language, but it deals only with process and not substance or outcome.

8-10. Concerns the negotiation process

Words on high level review meetings plus extraordinary meetings at short notice. It is what they would do anyway.

11. New agreement once arrangements completed to satisfaction of both parties.

If you are not happy you are not satisfied.

12. If one party thinks other is acting with intent to apply the Protocol indefinitely, then dispute mechanism can be triggered.

So far so good

13. If a dispute arises, a Joint Committee will endeavour to resolve the dispute in a timely fashion.

So far so good. 

14. The ultimate body for resolving a dispute is an arbitration panel. A ruling that one party is acting with objective of applying the backstop indefinitely, would bind both the UK and the EU. Persistent failure to comply with a ruling may result in temporary remedies. Ultimately the aggrieved party could suspend its obligations in relation to (amongst other things) the backstop. The suspension stays until the offending party has taken the necessary measures to comply with the panel's ruling.

The critical paragraph. As an offended party you have to get the panel to agree that the other party has acted perversely - not easy. And (will this be made clear by politicians?), if one party is culpable then this does not entitle the other party to exit the backstop for good. There is merely suspension and the culpable party can revive the backstop by returning to good behaviour.

B and C do not add anything material




All this stands quite separately from the politics. But I reckon that the person who slept well last night will be the President of the EU Commission and the person who did not sleep well will be the UK's Attorney-General.