Professor Michael Dougan’s Analysis of the March 2019 Brexit Amendments

Professor Michael Dougan, University of Liverpool, 12 March 2019

Summary: The legal classification of the “Instrument relating to the Withdrawal Agreement” and the “Joint Statement supplementing the Political Declaration” is insignificant. The crucial factor is whether these new elements meaningfully alter the withdrawal agreement endorsed in November 2018, which awaits Commons approval.

The Instrument primarily reiterates existing Withdrawal Agreement provisions without significant additions or changes. Notably, the “backstop” can still be activated and remain indefinitely unless the EU and UK agree to amend, replace, or remove it. The lack of a legally binding time limit or a unilateral UK termination mechanism for the “backstop” persists. The Instrument’s suggestion that the UK could suspend the “backstop” if the EU breaches its good faith negotiation duty is not novel and practically unrealistic.

The Joint Statement aims to elaborate on the non-legally binding Political Declaration, focusing primarily on the future EU-UK negotiation process. It lacks meaningful guarantees regarding negotiation timelines or outcomes.

The Prime Minister’s proposal for a Unilateral Declaration, asserting the UK’s right to disapply the “backstop” under specific circumstances regardless of Withdrawal Agreement obligations, raises concerns. The government openly threatening to violate an international treaty before ratification is remarkable. While this threat may be hollow, given potential adverse implications for Northern Ireland, it reflects poorly on “Global Britain’s” commitment to international law.

Introduction

Prime Minister Theresa May’s March 11, 2019, Strasbourg statement emphasizes the superficial legal categorization of the “Instrument relating to the Withdrawal Agreement” and the “Joint Statement supplementing the Political Declaration.” Instead, it should focus on their substantive legal implications, particularly their impact on the existing withdrawal package and the capacity for effective legal enforcement.

The legal classification of these documents is inconsequential. While they may be labeled as “legally binding” or “having legal force,” it’s meaningless if they don’t meaningfully change the withdrawal package or if their promises are unenforceable between the EU and the UK.

Therefore, the critical question is: do the Instrument and Joint Statement significantly alter the November 2018 withdrawal package awaiting House of Commons approval?

The Withdrawal Agreement: Assessing the Instrument’s Impact

The Instrument largely reiterates provisions from the Withdrawal Agreement and subsequent documents like the “UK Government Commitments to Northern Ireland” and the “Exchange of Letters” between the UK and EU leadership. Only a few points require further analysis.

Paragraphs A.5-A.11 outline a shared desire to replace the “backstop” quickly by establishing timelines, exploring technological solutions, and conducting periodic reviews. However, these details don’t change the “backstop” obligations within the withdrawal package. Additionally, their aspirational nature makes them unenforceable in altering the “backstop’s” terms. A promise to negotiate a vague future outcome doesn’t obligate either party to achieve it.

In essence, the Instrument confirms that the “backstop” can be activated indefinitely under the Withdrawal Agreement, subject to mutual agreement for its amendment, replacement, or removal. It lacks a legally binding time limit or a unilateral UK termination mechanism.

The Instrument implicitly acknowledges this reality when discussing compliance and enforcement regarding replacing the “backstop.”

Paragraph A.4 illustrates bad faith negotiation as systematically dismissing adverse proposals or interests. However, this example is unrealistic, and proving such a breach based on the low threshold of “taking X into consideration” would be difficult. Ultimately, paragraph A.4 doesn’t substantively change the withdrawal package.

Similarly, paragraph A.12, illustrating bad faith as acting to apply the “backstop” indefinitely, is difficult to prove in practice. Arguing for the “backstop’s” continuation due to a lack of viable alternatives is easy. Again, paragraph A.12 is illustrative and doesn’t change the withdrawal package’s substance.

Paragraph A.14 reiterates that if an arbitration panel finds persistent default regarding good faith negotiation, the aggrieved party can adopt temporary remedies, including suspending “backstop” obligations. This scenario is unconvincing or worrying, as suspending the “backstop” without alternatives could lead to a hard border between Northern Ireland and the Republic of Ireland. This contradicts the UK’s commitment to avoid a hard border. Furthermore, any UK proposal to suspend the “backstop” must be proportionate and temporary. Given the vague nature of good faith negotiation and the ease of demonstrating compliance, paragraph A.14 presents an empty threat.

The Political Declaration: Examining the Joint Statement’s Influence

The Joint Statement largely repeats the Political Declaration and related documents. It elaborates on how the Parties will negotiate a future relationship, including thematic priorities, timelines, parallel negotiations, and the link to replacing the “backstop.”

However, neither the Political Declaration nor the Joint Statement is legally binding. The Joint Statement focuses on the negotiation process without guaranteeing outcomes, such as reaching an agreement, timelines, ratification, or the final agreement’s content.

Paragraph 5, addressing the future relationship’s guiding principles, notes the UK’s intention to uphold existing social, employment, and environmental standards and allow Parliament to consider future EU law changes. However, this holds limited significance for UK domestic law and is practically irrelevant to the withdrawal package’s legal status or content.

The Proposed UK “Unilateral Declaration”

The Prime Minister’s statement proposes a Unilateral Declaration stating that if the “backstop” is implemented and future relationship talks break down, nothing prevents the UK from taking measures to disapply it.

While factually accurate – the EU can’t “prevent” the UK from acting domestically – the statement is remarkable. The UK openly threatens to violate a binding international agreement before its ratification.

This threat might be hollow, as unilaterally disapplying the “backstop” without alternatives risks a hard border between Northern Ireland and the Republic of Ireland, leading to further economic, social, and political complications.

Ultimately, this disregard for international law contradicts the UK’s “Global Britain” aspirations.

Barnard & Peers: chapter 27

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