Naturally, the Withdrawal Agreement, running to 580 pages, contains substantially more detail than the March version, especially in relation to Northern Ireland, and what is known as the "Irish backstop".
WHAT IS THE IRISH BACKSTOP?
The EU and the UK agreed in December 2017 that some arrangement needed to be made to ensure an open border on the island of Ireland in the event that the UK leaves the EU without securing a tariff and customs free deal. The history between Northern Ireland and the rest of the island of Ireland is complex and it is only twenty years since the Good Friday Agreement marked the official cessation of civil hostilities. Both the UK and the EU, representing the interests of Ireland as a Member State, are anxious to maintain an open border and allow all-island trade and traffic to continue uninterrupted, as contemplated in the Good Friday Agreement. The backstop is a safety net designed to achieve that end.
The Withdrawal Agreement contemplates that Northern Ireland would stay aligned to some rules of the EU Single Market, if no other solution can be found by the end of the transition period on 31 December 2020. That means that goods coming into Northern Ireland from the rest of the UK would need to be checked to see if they meet EU standards. It would also involve a temporary single customs territory effectively keeping the whole of the UK in the EU customs union, at least until both the EU and the UK agree that it is no longer necessary. This has proved completely unacceptable to two factions: the ten Democratic Unionist Party MPs, whose votes the Prime Minister is reliant upon, who are staunchly opposed to any measure by which Northern Ireland is treated any differently from the rest of the UK; and the hard line Brexiteers, who are incensed at the prospect of the UK having to abide by EU regulations on which it will have no input, for the foreseeable future, and that the UK can only end the backstop with the agreement of the EU. The level of opposition to the Withdrawal Agreement is significant, because the Government needs to get a "meaningful vote" in favour of the agreement before it can ratify it.
WHAT IS THE "MEANINGFUL VOTE"?
The European Union Withdrawal Act 2018 (the "Withdrawal Act") requires the Government, if and when it reaches a deal with the EU, to lay three documents before Parliament:
- A statement that political agreement has been reached;
- A copy of the negotiated treaty with the EU (ie the Withdrawal Agreement); and
- A copy of the framework for the future relationship.
The House of Commons would then debate a motion to be moved by a Cabinet Minister which approves both the Withdrawal Agreement and the framework for the future relationship. A very recent amendment to the Withdrawal Act has provided that the approval motion is capable of being amended by the House of Commons; in other words it could be changed from a binary yes/no vote to a vote on some alternative proposition (the so-called "Grieve Amendment").
WHEN WILL THE MEANINGFUL VOTE HAPPEN?
The Government had intended the vote to take place on Tuesday 11 December. However it became apparent on the morning of Monday 10 December that there was absolutely no prospect of the Withdrawal Agreement being approved by the House of Commons; it is thought that it would have failed by a margin of 60 or 70 votes. Instead, the Prime Minister undertook to return to Brussels to attempt to secure "additional reassurance on the question of the backstop" from the EU. Whether she obtains any such reassurance, and whether such reassurance will be enough to change the minds of the naysayers, remains to be seen.
In any event at some point before 21 January 2019 the Government will have to either go ahead with the meaningful vote, or conclude that there is no agreed Withdrawal Agreement. In the latter case, or if it goes ahead with the vote and does not secure a majority, the legislation requires it to make a statement about how it "proposes to proceed". A Minister must then move a motion to the effect that the House "has considered" the statement. That motion has no direct legal effect but the ensuing debate is almost certain to influence the Government's subsequent course of action. It is possible that MPs will use the Grieve Amendment to vote through a second referendum, to request an extension of the Article 50 notice period, to revoke the Article 50 notice or some combination of the foregoing. Despite almost two and a half years of "No deal is better that a bad deal" rhetoric, the view of most political commentators is that there is no majority in the House of Commons for a "No Deal" Brexit, and in the absence of some last minute fundamental alteration to the Withdrawal Agreement to make it acceptable, the Commons will find a way to at least stall Brexit in the short term. If it doesn't, the UK will cease to be a member of the EU on 29 March 2019 without any transition period, and without a single free trade agreement, by operation of the Withdrawal Act.
CAN THE ARTICLE 50 NOTICE BE REVOKED?
The Treaty on European Union (the "TEU") is silent on the question of whether a notice to withdraw from the EU delivered under Article 50 could be revoked. The UK Government argued strongly that it could not, and in any event that the question was hypothetical since it would never in any circumstances seek to revoke the notice served in March 2017. At the initiative of a number of Scottish MPs, MEPs and Members of the Scottish Parliament, the Inner House of the Court of Session in Edinburgh referred a question to the Court of Justice of the European Union, to ascertain if revocation were possible, and if so whether it could be done unilaterally, and with or without conditions.
On the morning of Tuesday 10 December, just as Prime Minister May was deciding whether or not to hold the meaningful vote, the CJEU issued its ruling. It found that unilateral revocation of Article 50 TEU was a sovereign right for any Member State to pursue without any conditions attached, except that the decision to revoke would need to satisfy national constitutional requirements (as notification under Article 50 does); in the case of the UK, as established by the Miller Case, that would mean a vote of both Houses of Parliament. It further noted that revocation would result in the Member State remaining an EU Member State on identical terms; this may be highly significant in the UK debate, since it defeats arguments that the UK would be forced to join the Euro or lose any of its various opt-outs or rebates if it sought to remain in the EU.
The short answer is: nobody knows. It seems unlikely that Mrs May will wrestle any further significant concessions out of the EU, and she has been adamant that she will not countenance another referendum. Some wonder if Mrs May, or her Government, can survive; however, under the Fixed-term Parliaments Act 2011, the next election is not due until May 2022 unless a no-confidence motion is passed or a two-thirds majority of the House of Commons vote in favour. Neither seems likely and in any event since both major parties are, nominally at least, in favour of Brexit, a general election would not resolve the situation. Mrs May's own position seems tenuous, but as yet the 48 votes of Conservative MPs needed to trigger a leadership election have not materialised. Only time will tell!
This Client Alert is not intended to constitute legal advice and should not be taken as a recommendation to take action or withhold from taking action.